The Supreme Court has taken up yet another abortion case, Dobbs v. Jackson, and it could end up as a biggie. The votes seem to be there to finally and completely overturn Roe v. Wade. However, even conservative jurists have tended to prefer incremental change and they might continue the long process of chipping away at the case which stole abortion policy from the public.
In neither case would the Left be happy. The shrinking progressive Supreme Court faction — think of the Democratic Party congressional caucus after the GOP sweep in 1994 — deployed the most desperate of claims during the Dobbs oral argument.
Justice Stephen Breyer attempted a judicial Hail Mary pass: “To overrule under fire in the absence of the most compelling reason, to reexamine a watershed decision, would subvert the Court’s legitimacy beyond any serious question.” Justice Elena Kagan also took a new liking to precedent, which she argued was “especially” important “to prevent people from thinking that this Court is a political institution that will go back and forth depending on what part of the public yells loudest.” Strangely, no progressives came forth when Roe was decided and worried that overturning every abortion law in the country might look political.
Apparently realizing that yelling was more likely succeed than the equivalent of judicial begging, Democratic officeholders grabbed the old playbook and now are threatening the jurists. For instance, Sen. Jeanne Shaheen (D-NH) virtually snarled: “I hope the Supreme Court is listening to the people of the United States because … I think if you want to see a revolution go ahead, outlaw Roe v. Wade and see what the response is of the public, particularly young people.” The latter, she added, would not find such an outcome to be “acceptable.”
Last year it was Senate Minority Leader Chuck Schumer who seemed ready to drop kick the rule of law when it came to Roe. He warned court members to beware if they voted to overturn the abortion decision: “You have released the whirlwind and you will pay the price!” Schumer sounded a bit like a New York mobster when he added: “You won’t know what hit you if you go forward with these awful decisions.”
These comments suggest that Shaheen and Schumer, at least, don’t understand that the Supreme Court is not just another legislature which gets to vote on the substance of policy. Whether people believe a legal decision is “acceptable” has nothing to do with whether it is the correct legal decision.
Moreover, the way to respond to an adverse legal decision in America is not to stage a revolution, but to do what opponents of Roe did — organize and fight politically to overturn the decision. And the pro-abortion lobby would have a much easier time. Pro-lifers had to overturn the court’s decision before launching the general legislative battle. If Roe falls, abortion backers could ignore the courts and concentrate on convincing states to keep abortion legal. Americans would retain access to abortion if they were prepared to travel.
However, Roe left progressives over-confident and lazy. No need to worry about democratic legitimacy, public support, legislative backing, election campaigns, or convincing anyone. Just wave a copy of the decision and tell everyone to stop valuing and protecting babies.
For instance, Eleanor Smeal, president of the Feminist Majority Foundation, allowed that after Roe “It was a celebration, it was happiness, and people thought the fight was over — we won.” She observed that “The movement wasn’t thinking of, ‘Oh my God, we’re going to have to fight to protect this’.” However, pro-lifers went to work, surprising the abortion lobby. “We couldn’t imagine anyone would hammer away,” said Smeal.
The Guardian’s Jessica Glenza made a similar point as to the unexpected opposition: “Over the years, a vocal minority of socially conservative Americans have steadily gained political power, passed many state-level challenges to the decision.” And not just state laws. Pro-life activists also are busy at the local level.
Roe left progressives over-confident and lazy. No need to worry about democratic legitimacy, public support, legislative backing, election campaigns, or convincing anyone.
Reported Audra Jane Heidrichs, also at the Guardian: “Bypassing statehouses and targeting smaller towns and cities governed by council has emerged as a successful strategy for anti-abortion advocates in recent years. In July, a report from the Guttmacher Institute revealed that at least 30 towns in six states — Arkansas, Indiana, New Mexico, New York, Ohio and Texas — have approved municipal abortion bans in the last three years. Some of these ordinances also target specific abortion funds and organizations providing other types of practical support to abortion patients.”
Obviously, the reach and effectiveness of such measures, those that survive judicial scrutiny, are limited. However, as prohibitions accumulate, noted the Guttmacher Institute in July, they “amplify the harm of earlier ones: Each additional restriction increases patients’ logistic, financial and legal barriers to care, especially in regions where entire clusters of states are hostile to abortion.” The measures also demonstrate the breadth and depth of the pro-life movement, which continues to battle nearly a half century after Roe. In July Guttmacher complained that “More abortion restrictions — 90 — have already been enacted in 2021 than in any year since the Roe v. Wade decision was handed down in 1973.”
Roe, above many other bad decisions, deserves reversal. It came at the height of the era of judicial activism. The ruling was nonsense on stilts, to borrow a phrase from John Stuart Mill. The majority opinion read like a legislative decision because it essentially was one. Then-Yale law professor John Hart Ely, a supporter of more liberal abortion laws, nevertheless observed: “It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.” Indeed, he added, the case “lacks even colorable support in the constitutional text, history, or any other appropriate source of constitutional doctrine.”
If the high court finally reverses what is one of its worst decisions, then abortion politics will be back full time for both sides. In a sense, the reversal of Roe would turn the court ruling into an interlude during which the role of politics ebbed a bit. The old issue would be back, with two very important differences. The first is that scientific advances have resulted in new understandings. The second is the reversal in political posture, with abortion now generally legal.
Overall, the U.S. would remain badly divided: The New York Times figured that “In more than half of states, though, legal abortion access would be unchanged.” Without Roe, most any red or marginal state is likely to become a political target. And both sides are preparing.
Alice Miranda Ollstein of Politico reported that “Abortion rights groups are amassing millions in donations, recruiting volunteers to help people travel across state lines for the procedure, and developing a grey market to deliver abortion pills straight to patients’ doorsteps — even in states that have banned them.” The other side also is active: “Conservative groups are equally busy: drafting model legislation that will prohibit abortion, spending hundreds of thousands of dollars lobbying lawmakers to enact new bans, and sending an army of door-to-door canvassers to key swing states to blunt any political backlash the decision could cause.”
The democratic process is no panacea, of course. However, politics is the best way to deal with such a difficult choice, life versus liberty. Courts are notoriously bad at balancing such interests. Indeed, Roe demonstrated how an ideological faction could seize control of the courts, short circuit public discussion and debate, and impose extremist policies disguised as constitutional interpretation. Even so, abortion opponents played by the rules and emphasized making friendly appointments when vacancies arose. Having lost that game, the pro-abortion side wants to toss out the constitutional framework and even more blatantly manipulate judicial power.
Ultimately, the problem is lack of constitutional fidelity rather than presence of judicial activism. For instance, the Constitution bars unreasonable searches and seizures. Jurists should enforce this legal prohibition with determination and energy. However, judges should not be in the business of imposing their legislative preferences under the guise of constitutional interpretation. The most important symbol of a return to judges being judges would be the reversal of Roe.