Now What?
Now that Roe v. Wade has been overturned, will Americans ever trust the Supreme Court again?
As Americans, we are taught to venerate the U.S. Constitution as the source of our most fundamental rights.
It normally takes generations for our understanding of the Constitution to shift, as new justices bring their own interpretations to the bench. It took decades for the court to buy into the idea of a right to privacy implicit in the document — a right first articulated more than 70 years earlier by future Supreme Court Justice Louis Brandeis, who wrote in the Harvard Law Review about “the right to be let alone.”
Only with Griswold v. Connecticut, which guaranteed married couples a constitutional right to purchase contraceptives, did the Supreme Court expressly find a right to privacy implicit in the text of the constitution — dancing in “penumbras” of other constitutional protections. Only armed with this new right could advocates successfully argue that the Constitution also protected the right to have an abortion.
Yes, it took decades, but once the right to privacy was established — once abortion was officially protected by the Constitution — generations of Americans understood that as a fundamental right. And the Supreme Court wasn’t in the business of taking away rights. And they never would, right? Roe was settled law, wasn’t it? Isn’t that what every nominee said during their Senate confirmation hearings? Roe was precedent — at this point, 50 years of precedent — and you don’t mess with precedent, especially a right this important to this many people.
That’s why Friday’s decision was such a shock. Yes, the court had chipped away at abortion rights for years — allowing states to impose more restrictions, allowing bans earlier and earlier — but the fundamental right was safe… until.
Until Ruth Bader Ginsburg refused to step down when Barack Obama could have replaced her. Until Mitch McConnell refused to hold a hearing on Merrick Garland. Until millions of people refused to go to the polls because Hillary Clinton didn’t excite them. Until, through a confluence of deaths and retirements, Donald Trump got to nominate three people to the Supreme Court. All of whom promised to respect Roe v. Wade.
All of whom voted to overturn it.
Should Justices Neil Gorsuch and Brett Kavanaugh be impeached for lying under oath when they told senators that Roe was settled law?
States are taking sides.
As the nation reels from the court’s 5-4 reversal, lawmakers around the country are moving quickly now that abortion is no longer a right guaranteed by the U.S. Constitution.
The states are taking sides. California, Oregon and Washington state announced they will work together to protect against efforts by “states hostile to abortion rights,” which might attempt to target citizens who travel out-of-state to get an abortion. These Pacific Northwest states say they will resist out-of-state investigations, and will refuse to extradite anyone seeking reproductive healthcare services within their states.
California Gov. Gavin Newsome has called it the “West Coast offense.” He signed a bill protecting in-state providers from out-of-state lawsuits.
California lawmakers will ask voters to approve an amendment to the state’s constitution to protect reproductive rights. Vermont voters will also get the chance to enshrine the right into their state’s constitution.
In Utah and Louisiana, judges have temporarily blocked “trigger” laws from going into effect until the courts can consider the legality of the bans. Similar bans are facing challenges in several other states, including Kentucky, Idaho, Mississippi, Texas and Arizona.
The Utah trigger law bans abortion with exceptions for the life or health of the mother, or in the case of rape or incest. It also permits abortion if the fetus won’t survive, or will never see anything more than a “mentally vegetative state.”
Keeping the law in place would lead to “irreparable harm,” the judge said Monday. “I think the immediate effects that will occur outweigh any policy interests of the state in stopping abortions immediately. Doctors here are threatened with felonies. The affected women are deprived of safe, local medical treatments to terminate pregnancies.”
As the U.S. Constitution no longer protects the right to abortion, advocates are looking for protection in state constitutions.
In its challenge to the law, Planned Parenthood of Utah is arguing that the abortion ban violates the rights given in the state constitution: “Although Dobbs ... has revoked the right to previability abortions under the U.S. Constitution, the Utah Constitution serves as an independent source of rights for Utahns.”
State constitutions can allow for more expansive rights than the U.S. Constitution provides. And Planned Parenthood argues that the Utah Constitution should be read broadly. Even if the text might be identical to the federal Constitution, they say, judges should be able to interpret that text differently.
Planned Parenthood finds the right to an abortion implicit in several established rights throughout the state constitution, including: the right to determine family composition and to parent; the rights to equal protection and due process; and the the right to be free from involuntary servitude (which the law allegedly violates “by forcing pregnant Utahns to carry pregnancies to term against their will”).
In the absence of a recognized fundamental right to abortion in the U.S. Constitution, we can expect similar challenges in all states where the procedure is banned, as advocates comb through state constitutions for language that might help.
Abortion is currently banned or severely limited in 11 states, with 11 others poised to do the same. Several states ban abortion as early as six weeks. Some others ban it entirely. Last month Oklahoma’s governor signed a law making abortion illegal from the moment of conception.
Oklahoma is not the only state to ban abortion from fertilization. And it won’t be the last.
An uncertain future.
Roe was always on shaky ground, constitutionally speaking. Finding constitutional rights hidden in “penumbras” is arguably more akin to mysticism than actual textual interpretation. Even the liberal constitutional scholar John Ely wrote shortly after Roe that the decision was “not constitutional law and gives almost no sense of an obligation to try to be.”
Proponents of abortion wanted the right to be there so badly, they were willing to read the document so broadly that the words on the page could mean anything. Even Ruth Bader Ginsburg thought Roe moved too quickly, did too much, halted progress on the issue in state legislatures, and would have found stronger authority in the Equal Protection Clause. “The court bit off more than it could chew,” she said in 2008.
It’s not the first time the high court has stripped us of a “fundamental right.” But it’s the first time the court has taken away a right so crucial to the mental and physical well-being of so many citizens. Friday’s decision has left half the country reeling. It has left women across America feeling like second-class citizens — like their rights don’t matter. And it has irreparably punctured the facade of legitimacy that the Supreme Court has enjoyed for generations.
What do we do now? If the Supreme Court can take away a right — if they can reinterpret settled case law whenever new membership allows it — how can we ever trust the court again?
That's as concise and thoughtful an overview as I've read.
First, we amend, revise/adapt our constitution like so many other liberal democracies. Every 25 yrs., we take another look at this poignantly motivating document that embodies so much. Second, nobody gets appointed for life in a liberal democracy!