Alex MorrisSat, December 4, 2021, 5:00 AM·6 min readIn this article:
- Brett KavanaughAssociate Justice of the Supreme Court of the United States
Listening to the oral arguments this week in Dobbs v. Jackson Women’s Health Organization, one thing seemed abundantly clear: Roe v. Wade will soon be overturned. This was clear in Chief Justice John Roberts’ line of questioning, as he lamely tried to get his conservative colleagues to stick to the Mississippi law’s original (unconstitutional) 15-week ban rather than considering a full overturn of Roe that the state started pushing for as soon as Justice Amy Coney Barrett was confirmed. It was clear when Barrett inanely skirted the issue of forced pregnancy and childbirth by reassuring the court that “safe haven” laws still allowed women to give their babies up for adoption. It was especially clear when Justice Brett Kavanaugh began suggesting that the Constitution is “neutral on the question of abortion” and enumerating cases in which precedent has been overturned. Based on their line of questioning — and to the extent that it is predictive — a majority of justices demonstrated not only a willingness to overturn Roe but some prior consideration of how to justify doing so. Whether Dobbs is the case that will finally mark the end of the constitutionally protected right to an abortion (and we probably won’t know until June or July), it is clear that the end is coming soon.
This is significant for the obvious reason that as soon as Roe is overturned, trigger laws and amendments in place in at least 20 states will automatically kick in, outlawing or dramatically restricting abortion access within their borders. Overnight, millions will lose a right that has been theirs their entire life. Many will go from the choice of having a safe abortion to the “choice” of having an unsafe one. Many will choose the latter.
But the reversal of the precedent set by Roe would be important for other reasons as well. All of the cases listed by Kavanaugh, all the examples he gave of precedent being overturned, “those were all cases where the court reversed to make individual rights broader in scope,” Julie Rikelman, the co-lead attorney in Dobbs, said in a press conference Wednesday. “To take away a constitutional right after 50 years really would be a monumental thing to do.” In fact, it would set its own precedent: It would establish that constitutional rights affirmed by the Supreme Court can be unaffirmed. And that dubious precedent could imperil the outcomes of the very cases Kavanaugh mentioned. It would demonstrate that, at least where the Supreme Court is concerned, the long arc of the moral universe may not in fact bend toward justice. It could reverse course.
And to be clear, that’s exactly what the conservative movement is counting on. In an amicus brief filed in Dobbs on behalf of Texas Right to Life, Jonathan Mitchell, one of the architects of Texas’ six-week abortion ban, proposed that the court not only overturn Roe but also Obergefell v. Hodges (the case that granted marriage equality) and Lawrence v. Texas (the case that decriminalized sodomy). While striking down Roe would not, Mitchell writes, necessarily jeopardize all legal precedent, it opens the door to overturning a host of decisions that extended basic civil rights to vulnerable people:
The news is not as good for those who hope to preserve the court-invented rights to homosexual behavior and same-sex marriage … These “rights,” like the right to abortion from Roe, are judicial concoctions, and there is no other source of law that can be invoked to salvage their existence … This is not to say that the Court should announce the overruling of Lawrence and Obergefell if it decides to overrule Roe and Casey in this case. But neither should the Court hesitate to write an opinion that leaves those decisions hanging by a thread. Lawrence and Obergefell, while far less hazardous to human life, are as lawless as Roe.
This week, Mississippi solicitor Scott Stewart attempted to establish that lawlessness. In his statements to the court, Stewart — a man who once argued for the Trump administration in favor of family separation — found himself at a loss to adequately explain what had changed in the past 50 years to justify going back on legal precedent. His stuttering appeal to “advancements in medicine, science, all those things” that supposedly reframed the matter were quickly and neatly dispelled by Justice Sonia Sotomayor. His main justification then rested with the idea that the Supreme Court decisions that have affirmed abortion rights “have no place in our history or traditions,” as he put it. “They’ve damaged the democratic process. They’ve poisoned the law.” In other words, because abortion was not a right that the Constitution historically and traditionally granted to all Americans, it is not a legitimate one.
Bearing in mind the precarious position in which this logic puts civil rights, LGBTQ rights, and gender equality (such as it is), a key thing to realize about this line of reasoning when it comes to abortion is that it isn’t even true. Based on an amicus brief filed back in September by both the American Historical Association and the Organization of American Historians, at the country’s founding and for many decades after, our legal system relied on English common law. More to the point, as the brief states, “The common law did not regulate abortion in early pregnancy” because it “did not even recognize abortion as occuring at that stage.” Under common law, a fetus did not exist as separate from the pregnant woman until she felt fetal movement, or “quickening,” which (a) could occur as late as the 25th week and (b) was a subjective point in time that trusted (trusted!) a pregnant women’s testimony of whether she had felt quickening or not.
In fact, states didn’t start regulating abortion until the 1820s and 1830s — and largely in response to concern for the safety of the woman rather than the fetus. A Connecticut trial of a minister who had impregnated a 17-year-old and then forced her to drink poison drew the outrage of many; even so, Connecticut codified the common law. So did Mississippi. Even states that penalized abortion before quickening tended to do so lightly, pre-empting our current legal distinction of the point of viability: In New York, abortion before quickening was a misdemeanor; afterward it was a felony. By the late 1850s, 15 of 33 states still followed the common law, and 10 of these did not criminalize abortion at any stage. In states that did, enforcement was rare. All of this, the historian brief argues, “confirm that Roe’s central conclusion was correct: American history and traditions from the founding to the post-Civil War years included a woman’s ability to make decisions regarding abortion, as far as allowed by the common law.”
Of course, none of this was present in Stewart’s argument because his wasn’t a legal argument at all; it was a political one. And being a political one, it followed the conservative playbook in its convenient disregard of truth and reality, in its idealization of some sort of “quintessential” America from way back when. That Scott thinks we should take this “America” as a model is either disingenuous or delusional — but it fits the conservative edict on how the present and future should be modeled on a fantasy past. In rolling back the clock on human rights, conservatives are, as usual, gunning for a version of America that never actually existed in the first place. Take heed: Thanks to them, maybe one day it will.