THE LONG TAIL OF THE DECISION TO REVERSE ROE VERSUS WADE

 If there was one thing we learned in the first stage of the Trump Era, it was that no matter how bad things got, they could only get worse. We were seeing things happen that would have been unthinkable previously, and none of them were good. They all tended toward a concerted assault on freedom and democracy. We even witnessed something that we, and most other people around the world, would have thought an utter impossibility in the United States of America: a serious attempt to foster a violent overthrow of the prevailing order and to install an autocratic, single-party regime in power.

The other thing we learned in the first stage of the Trump Era was that there is a second stage. Although the majority of Americans breathed a collective sigh of relief when the democratic transfer of power actually took place—after being unable to believe our own eyes and ears when it seemed that it wouldn’t—that relief has proven a false friend. There has been no return to normalcy, no prosecution of the real perpetrators of the almost coup, no vindication of those who literally risked everything to re-establish democratic order. On the contrary, the offending parties are bolder than ever, are defying legal processes and are counting on again taking over power, while changing voting laws, districts and procedures (and, in the process, violating hard-won minority voting rights) in any way they can to ensure that they do.

Perhaps the biggest sigh of relief that true democrats breathed was when, in the aftermath of the 2020 election, it became clear that, finding no accomplices for his patently false accusations of election fraud amid more than sixty federal judges, a number of whom he had appointed to the court, a defeated but implacable Donald Trump planned to use the Supreme Court—which he had packed with three ultra-conservative justices—to seek to legitimize his phony fraud claims. Our relief came when none of the Trump appointees agreed to hear voter fraud cases brought to the Court by Trump surrogates including, prominently, attorney Sidney Powell. The only dissenting opinion in the Court regarding hearing any of the cases that Trump World sought to bring before it was that of Associate Justice Clarence Thomas. Thomas’s wife Ginni has since been outed as a diehard Trump supporter who may well have played an important role in propagating the so-called Big Lie and in other efforts to overturn the legitimate presidential election results.

Once again, however, we were falsely lulled into believing that the checks and balances were working, and that, even when the Republican side of Congress was packed with coup-mongers, the Supreme Court would still prevail in protecting the inherent rights of American citizens against violation by a far-right autocratic conspiracy. Nevertheless, if those attempts at undermining the election rights of Americans were too blatant for the Court to abide, we are now seeing that the far-right onslaught is continuing in not much subtler ways.

Kavanaugh, Coney Barrett, Thomas and Alito

The first open manifestation of this agenda took shape this past week when the conservative majority of justices struck down a half-century old SCOTUS decision (Roe v Wade) that basically determined that it was unconstitutional to deny women the right to an abortion, and thus, the right to the pursuit of their own destiny and to exercise control over their own bodies. Among the five assenting opinions were those of the three Trump appointees. While this may come as no surprise, it is worth noting—as have no few liberal members of Congress and even a few conservatives—that during their congressional confirmation hearings, all three testified under oath that they viewed Roe v Wade as a “settled precedent” and thus, the law of the land.

In constitutional law, settled precedents are, as the name suggests, questions of law that have been settled once and for all. In the case of Roe v Wade, what that meant—should anyone be in doubt—was that, in the US, abortion was a constitutionally guaranteed women’s right, a fact that coincides with international human rights standards. Authoritative interpretations of international human rights law have long established that denying women and girls access to abortion is a form of discrimination and jeopardizes an entire range of human rights. United Nations human rights treaty bodies regularly call on governments to decriminalize abortion in all cases and to ensure access to safe, legal abortion in at least certain circumstances—rape, incest, pregnancy in minors and pregnancies that jeopardize the health and welfare of the potential mother.

No matter how you look at it, the action taken to strike down a substantive legal precedent that has empowered and protected a woman’s right to autonomy over her life and body is invasive and difficult to justify. In the face of opposing opinions that are more dogma-based than practical, the Supreme Court could have just as easily allowed the settled precedent to stand as to reverse it. That is to say, the Court has gone out of its way to overturn a decision supporting a human and civil right based largely on the subjective beliefs of a minority portion of society.

Indeed, nationwide polls have shown that more than eighty percent of Americans believe that abortion should be legal at least under certain circumstances—incest, rape, etc. And the vast majority believe that it is a right that the state should protect rather than interfere in.

Polls also indicate that only a little more than a third of the country wanted to see Roe v Wade overturned—not surprisingly that proportion is about equal to the segment of society that currently supports Trump World and the Big Lie. Coincidence? Probably not. Meanwhile, a full two-thirds of those polled have consistently said that Roe v Wade should stand.

More revealing still was one poll that indicated that more than sixty percent of Republican women surveyed believed that abortion was a matter between a woman and her doctor in which government should have no role. So, on whose behalf was the Court deciding to strip women of a right guaranteed by a long-settled precedent? The answer is, a subjective, non-secular minority—likely made up to a much larger extent by men than by women (who are now more vulnerable to discrimination than before)—that is seeking to impose its self-righteous authoritarian principles on the whole of the population in detriment to majoritarian democratic society.

There is a ripple effect in breaking with long-held principles. If one person’s rights can be legally violated, then all people’s rights are placed at risk. So the Court’s decision has also debilitated the judicial security of other sectors of American society. While Justice Alito, who wrote the conservative majority opinion, hastens to say that "we emphasize that our decision concerns the constitutional right to abortion and no other right,” and that, “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” this would appear to be a personal opinion or wishful thinking with no real legal foot to stand on.

Thomas

Indeed, in a separate concurrence that he wrote to accompany his sign-off on the quashing of Roe v Wade, Justice Thomas gave his own far-right view, saying “I write separately to emphasize a second, more fundamental reason why there is no abortion guarantee lurking in the Due Process Clause. As I have previously explained, ‘substantive due process’ is an oxymoron that ‘lack[s] any basis in the Constitution.’” According to Thomas, substantive due process (i.e., rights granted by court decision rather than directly by the Constitution) has to do with the Constitution’s guarantee of due process before someone is denied the right to life, liberty or property. But he opines that it has no bearing on what those rights actually encompass. Thomas says that since the Due Process Clause “does not secure any substantive rights,” including a right to abortion, then the Supreme Court should “reconsider all of this Court’s substantive due process precedents.”

Other writing by Thomas on constitutional law suggests that he favors an enormous departure from how the SCOTUS has traditionally approached the right to due process—a legal tradition that goes back one hundred fifty years. In keeping with that historical approach, the Court had interpreted the basic rights granted by the Fifth and Fourteenth Amendments to protect substantive rights granted by legal precedent. In that way, the US legal system has granted an ever-growing list of liberties that we citizens enjoy, rather than seeking interpretations of the Constitution that strip citizens of legally acquired rights, as the reversal of Roe v Wade does.

Now that the Court has set an entirely new precedent for removing rather than protecting rights granted by law, Thomas has made it clear that he wants to see all such due process rulings reviewed. And he has specifically—despite Alito’s assurances that this is a one-shot deal—indicated that such a review should first focus on Griswold v Connecticut, 1965 (governing the general right to privacy and the specific right of married couples to use contraception), Lawrence v Texas, 2003 (decriminalizing intimate relations between persons of the same sex), and Obergefell v Hodges, 2015 (legalizing same-sex marriage).

Breyer, Sotomayor and Kagan

If Obergefell were thrown out, perhaps the most significant human right acquired in the twenty-first century (the right to love whom you wish) would be torn from the law books, which could in turn re-criminalize same-sex relations altogether (Lawrence v Texas). The Court could further invade American bedrooms by banning such preventive contraception methods as IUDs and morning-after pills. It’s not hard to imagine further progressions to anything that “interrupts pregnancy”, such as vasectomy for males or tubal ligation for females.

In their dissenting arguments, Justices Breyer, Sotomayor and Kagan addressed this issue head-on, saying, "Either the mass of the majority's opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other…" They added, "We fervently hope that does not happen because of today's decision…But we cannot understand how anyone can be confident that today's opinion will be the last of its kind." 

The departure from a healthy legal tradition that this decision signifies appears to also have opened a veritable schism in the Court, one that Chief Justice Roberts’ usually moderating influence has been unable to span. Indeed, last week’s decision seems to signal that Roberts has lost control of the court, with Justice Thomas riding on the cusp of an extreme right turn in which his influence as a senior justice is added to the willing cooperation of the three Trump appointees (Kavanaugh, Coney Barrett and Gorsuch) and to the acquiescence of Alito.

Chief Justice John Roberts

In the controversial majority opinion, Alito wrote that abortion was not mentioned as a right in the Constitution as such, nor was the right to privacy. Incredibly, this last has not been stressed by the media, but the idea, according to the Court, that we have no constitutional or precedential right to privacy should come as a shock to Americans as a whole and should be a source of genuine outrage.

In their minority opinion, Breyer, Sotomayor and Kagan noted that since the framers of the Constitution were all men, “perhaps (it is) not so surprising that the ratifiers were not perfectly attuned to the importance of reproductive rights for women's liberty…" More specifically, the dissenting justices stated: "When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship."

The dissenting opinion adds that the court's ruling discards a balance set by past abortion decisions. "It says that from the very moment of fertilization, a woman has no rights to speak of." 

It would be difficult not to characterize last week’s Supreme Court decision as blatantly political rather than judicial. There are clear indicators that support this. First and foremost is the fact that this sort of decision is unprecedented in the highest court in the land. Although extremely rare, it’s not that the Supreme Court has never reversed a former decision. But the fact is that when this has happened in the past, it has consistently been in the interest of granting ever-greater freedom to Americans and ever-growing autonomy in the face of authoritarian advances by government.

This is a glaring exception to that rule. This is the power of the court being used to suppress a right and freedom that citizens had already won. It’s clearly a far-right revisionist attempt to turn back the hands of time to a more repressive era and to undo one of the major victories of the battle for broader women’s rights. The question now is, which other legally acquired rights will follow as the “evangelical” far-right continues its implacable assault on freedom and democracy.