The U.S. Supreme Court has overturned the 1973 landmark Roe v Wade decision that made abortion a right. This decision erased a near 50-year-old precedent that was subsequently twice confirmed by the Court. Abortion is now a matter that falls to each individual state to decide on its own, and many are likely to quickly implement abortion bans, with several states, like Kentucky and Louisiana, enacting bans with no exceptions at all. This decision by the SCOTUS represents a victory for religious fanaticism over democracy, science and individual rights.
The Republican Party has achieved this reversal by transferring the Court into the hands of a handful of religious zealots, the worst of which is Justice Clarence Thomas. Immediately after the decision, Thomas wrote that the Court should reconsider its similar decisions on contraception, gay marriage and even homosexual sex. If it were up to this wing nut - who should’ve already been removed from his position due to his wife’s active support of Trump’s attempted coup - there would be a special squad of Sex Police peeping into bedrooms all over the nation. Thomas is typical of the Christian fundamentalist crowd that has spearheaded the drive to outlaw abortion. They have wrapped themselves in a reality-proof shroud of piety and sanctimony. They bleat on about the sanctity of life while exhibiting cruelty and contempt towards people who are, you know, actually alive. What kind of person would force a 13-year-old incest victim to carry her pregnancy to term? Only the lowest sadist.
If you’re thinking that this decision was rooted in some deep legal thinking and constitutional scholarship, you’d be wrong. The five judges who voted to strike down Roe are nothing more than politicians hiding behind their robes, and the written decision was an embarrassing piece of political hackery. Defenders claim that this decision is a textbook case of constitutional originalism, which holds that sticking to the explicit text of a constitution is supposed to somehow free judgements from politics and personal bias. This notion is wholly false. The framers of the constitution were wealthy white men and they did not believe, despite some of their flowery rhetoric, that the rights they were enshrining applied fully to blacks, women, and indigenous peoples. Any strict originalist reading of the constitution thus naturally incorporates this monumental bias into the judges’ decisions and is therefore completely political. The conservatives’ originalism is just an attempt to give a faux moral integrity and intellectual veneer to what is essentially a naked denial of equal treatment to certain groups.
In 1973, the judges decided there was a right to abortion through an implied right to privacy, which they gleamed from ‘penumbras’ that emanate from the Bill of Rights. On a strictly legal and constitutional basis, privacy was not an explicit right. But the 1973 Court’s argument was rooted in the correct notion that without a right to privacy, most of the rights in the Bill of Rights would be compromised. The court then applied this inferred right to privacy to abortion. This reasoning was considered illegitimate by conservatives, and even some liberals thought the Court was overreaching.
What the Roe decision did was take the abortion issue out of the hands of legislatures and by extension, ordinary citizens, and relegate it to the domain of the fanatics. Instead of allowing the democratic process to do the admittedly difficult work of creating a compromise law, the Court imposed its decision and circumvented the political process. This empowered the fanatics on both sides to take legal shortcuts through the courts instead of doing the hard work to win hearts and minds. Now, after 50 years, there is finally a broad consensus on what abortion laws should look like. Consider these recent polling numbers, which asked under what circumstances abortion should be legal:
When the mother’s life is in danger- 87%
In cases of rape or incest - 84%
Fetus has a life-threatening illness or a severely handicapped condition - 74%
In the first trimester of pregnancy - 61%
In the third trimester of pregnancy – 19%
There are in fact almost no issues where you see such one-sided results. But because the Republican Party has been taken over by extremists, public opinion doesn't matter. With gerrymandered districts, voter suppression, the filibuster, and of course the SCOTUS, the Right has made the will of the people irrelevant. But it’s likely that the overturning of Roe won’t turn out the way they hope. As David Frum pointed out recently, abortion is now going to be like alcohol during Prohibition. Abortions will still happen; laws will be ignored or worked around. Women in states with bans will travel to states where abortion is legal. Unlike 50 years ago, there are now other solutions, like the morning-after pill and the abortion pill, RU-486, which can be easily ordered through the mail and is now used in half of all abortions.
But some Republican-controlled states are not only going to ban abortion, they are also going to pass laws that will criminally punish women who get them, and these laws will create a horrific intrusion by government into the private lives of its citizens. Imagine being a cop who is told to investigate a woman and her doctor to make sure she really had a miscarriage. Or imagine a place where the state spies on pregnant women, monitoring their computers and their mail and following them around to make sure they don’t leave the state. If this sounds at all reasonable to you, let me say you would have made a terrific Nazi. I doubt any of these draconian laws will be successful or will be fully enforced over time. But the women who will suffer the brunt of this lunacy are the ones with the least resources, who don’t have the money or the knowledge to game the system. And this, as always, is the definition of a bad law: one that has no hope of being applied fairly.
Here are a few inconvenient facts: the majority of abortions are for women who believe they are simply unable to care for a child at that point in their life, most often because they are single, young and poor. Contrary to the anti-abortion mythologists who like to yap about the selfish career woman refusing to have kids, some 60 percent of abortions are by women who already have children but feel they cannot properly care for another one. There is significant evidence that legal abortion has contributed to less crime, lower welfare payments and decreased levels of child poverty. It has been tied to lower dropouts rates, higher rates of college graduation and increased earning power for women. In short, it is fairly certain that banning abortions will make the U.S. worse off, economically and socially. The anti-abortion hypocrites don’t care about any of this. Is it an accident that the states wanting total bans are the same ones who spend the least on family social services? Of course not. As George Carlin famously put it, they will fight like hell to make sure a child is born, but after that, it’s fuck you, you’re on your own.
With this decision, the Court has lost whatever shred of legitimacy it had. The appointment of justices has been wholly political since the late 1980s but it has become steadily worse over the years. The main reason Roe was overturned is that Republicans refused to confirm Obama’s nominee in 2016 because they claimed it was “too close to an election”-which at the time was eight months away. In 2017-2020, with Trump and a Senate majority, the Republicans were able to put three very right-wing judges on the Court, including one that was confirmed only weeks before the 2020 election - an election in which the Republicans lost the presidency and their Senate majority. All three of those judges voted to overturn Roe. This sort of win-at-all-costs mentality will force the Left to respond in kind to what now looks to be an extremely conservative court for years to come. I think it is only a matter of time before a state or states ignore one of the Court’s rulings. What happens then is an open question with no good answers.
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