The End of ‘Roe’ and The Supreme Court

There is so much wrong with Justice Alito’s draft—soon to become final—opinion in Dobbs v. Jackson Women’s Health Organization upholding Mississippi’s legislative ban on abortions after 15 weeks and overruling Roe v. Wade, the landmark 1973 decision establishing a woman’s constitutional right to abortion up until quickening (usually, the sixteenth to eighteenth week of pregnancy), that it is hard to know where to start. But while there is clearly no upside to this opinion, its downsides essentially fall into two categories: It will breed further lack of confidence in a Supreme Court already tainted by politics, and it will place the health of women—both physical and mental—in peril and curtail their right to control their own bodies free from governmental interference.

First, the Court. It is clear beyond peradventure that the Republican Party—comprised of zealots who oppose abortion on religious grounds and others who, regardless of their religious beliefs, see abortion as a vehicle for ginning up the party’s base—has been engaged in a decades-long project to tip the balance of the Court strongly in favor of conservative justices who will overrule Roe. Starting with the appointment of Justice Scalia in 1986 and ending with that of Justice Barrett in 2020, Republican presidents have appointed right-wing ideologues with extremist views, bent on eliminating abortion rights. To be sure, they all gave lip service to keeping an open mind and adhering to precedent on abortion rights during their confirmation proceedings, but in the end have done/will do whatever is necessary to curtail or completely eliminate reproductive freedom. Thus, for instance, Thomas testified at his Senate confirmation hearing that he had no view as to whether Roe was rightly decided. Yet now, it appears that he will sign on to Alito’s opinion stating that, “Roe was egregiously wrong from the start.” During their confirmation proceedings, Justice Kavanaugh assured Senator Susan Collins of Maine that Roe was well-settled precedent and Justice Gorsuch pointed out to her that he had written an entire book on the importance of precedent in judicial decision making. Both appear ready, willing, and able to sign on to the Alito draft opinion notwithstanding that the core holding of Roe was affirmed in Planned Parenthood v. Casey as recently as 1992, just a nanosecond in judicial time from the present.