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Anyone believing the Supreme Court’s ruling overturning five decades of precedent in the Roe v. Wade decision would now be the last word in the riven public debate over abortion rights will be sorely disappointed.
The battles have only begun, with a new template to spring this and perhaps other controversial social issues into an uncertain future.
With new calls from former Vice President Mike Pence for a national abortion ban; to fears from many on the left that medication abortion and contraception access would next be compromised– both the high Court and the public at large have quickly begun to pivot from the constitutional demise of Roe.
“In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” wrote Justice Clarence Thomas in a concurring opinion in the Mississippi abortion case– referring to prior decisions on contraception, sodomy, and same-sex marriage. “After overruling these demonstrably erroneous decisions [in Roe and Casey], the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.”
Protesters are seen outside the Supreme Court Thursday morning.
(Joshua Comins/Fox News)
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Members of the Court’s diminished left-leaning wing clarified their concerns over what could come next.
“No one should be confident that this majority is done with its work. The right Roe and Casey recognized does not stand alone,” wrote Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan. “The Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation.”
The Court’s right-leaning majority, controlling opinion does try to confine its impact to the case at hand. Still, its willingness to strike down nearly 50 years of precedent will encourage advocates eager to test the conservative’s judicial muscle in other areas of the law and Constitution.
“To ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right,” wrote Justice Samuel Alito. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
Breyer, Sotomayor, and Kagan sharply questioned that rationale, saying Thomas’ words make the larger point “he is not with the program… So at least one Justice is planning to use the ticket of today’s decision again and again and again,”
“Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other. One piece of evidence on that score seems especially salient: The majority’s cavalier approach to overturning this Court’s precedents,” they added. “Stare decisis is the Latin phrase for a foundation stone of the rule of law: that things decide should stay decided unless there is a very good reason for the change. It is a doctrine of judicial modesty and humility. Those qualities are not evident in today’s opinion.”
Pro-life protesters outside the Supreme Court.
(AP Photo/Jose Luis Magana)
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There is every reason to believe that Breyer’s replacement – Judge Ketanji Brown Jackson is expected to join the high Court in a matter of days – will inherit that liberal concern.
Sotomayor, in particular, has seemed to chafe at the recent winning streak the Court’s conservatives have been on – over gun rights and other hot-button issues.
She subtly signaled in dissents from other cases over the past month that today’s abortion opinion would turn out as it did.
“A restless and newly constituted Court sees fit to refashion the standard anew to foreclose remedies in yet more cases,” she said in a law enforcement dispute.
“In just a few years,” Sotomayor said in a religious liberty case, the court “has upended constitutional doctrine. I respectfully dissent with growing concern for where this Court will lead us next.”
Roberts’ rules
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In many cases, oneprominent member of the Court has tried to curb any ambitions his colleagues on the left and right may have to move the law in dramatically different directions.
In particular, Chief Justice John Roberts, in the abortion decision, sought a middle ground. He made clear in his concurrence opinion he would have upheld – in a limited fashion – the nationwide pre-viability right to abortion but allowed Mississippi’s ban to be after 15 weeks to stand.
If Roberts’ views had prevailed, it likely would have disappointed those on both sides of the abortion debate. However, it appeared designed to avoid an over-arching court mandate and lessen tensions from the politically and culturally divisive issue.
Roberts and everyone else knew where Justices Alito and Clarence Thomas stood on abortion and the Roe precedent.
However, some court watchers speculated that the wild cards may have been Justices Brett Kavanaugh and Amy Coney Barrett – and whether Roberts could pull one or both to his side to forge a compromise. That he could not do so may tell us a lot about the internal dynamics played out in uncharacteristic public fashion.
Some saw the leak of the draft opinion in May as a calculated effort to freeze Roberts in place and blunt any compromise strategy. Others saw the leak as a left-inspired warning of what was to come.
Roberts’ views may not have prevailed, but he stuck to his principles and refused to endorse his conservative colleague’s decision to scrap Roe.
The pro-life crowd outside the Court reacted to the SCOTUS decision.
(Joshua Comins/Fox News)
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“I would decide the question we granted review to answer— whether the previously recognized abortion right bars all abortion restrictions before viability, such that a ban on abortions after fifteen weeks of pregnancy is necessarily unlawful. The answer to that question is no, and there is no need to go further to decide this case.”
As the justice in the Court’s unofficial center, Roberts has long taken the go-slow approach. But his influence on that matter may have dimmed considerably.
Reports of tensions within the Court in the wake of the opinion leak and the ileaker’s identitysuggest a rough period of adjustment when its members return in the fall for a new term, with a new member aboard.
There the Court will tackle whether to end affirmative action in college admissions effectively; and whether certain private business owners have a religious freedom right to refuse to serve LGBTQ+ customers.
Public perceptions
However, the Court’s current term is still in motion. We await rulings on President Joe Biden’s immigration and environmental policies; and a separate religious liberty dispute over a praying high school football coach.
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But the monumental abortion decision has, and will continue to dominate this Court’s jurisprudence. Its impact cannot be understated.
More than 90% of abortions in the U.S. take place in the first 13 weeks of pregnancy, according to the Centers for Disease Control and Prevention.
A new Fox News poll shows a close divide, with 51% believing abortion should be legal and 48% saying it should be illegal. But 60% of those surveyed think Roe v. Wade should stand – 30% would overturn it.
Other surveys in recent months have shown public confidence in the Supreme Court at historic lows over whether the American people trust the justices to act in the country’s best interests.
Our poll found just 39% approve of the Supreme Court’s job performance, with 48% disapproving.
Some legal commentators say the ruling on abortion is sure further to fracture the judiciary’s reputation in increasingly partisan times.
Defenders of the Courtsaidy its nine members did their job, knowing their work would be sharply criticized.
“I think this was a very brave decision by the Supreme Court,” said Erin Hawley, a former Roberts law clerk and a senior legal fellow at Independent Women’s Law Center. “They decided, based on the law in the Constitution, not on public opinion.”
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While Roe’s impact is history, its legacy will likely be felt in otheras too. That decades-old opinion expanded the debate on women’s rights, sexuality, healthcare, and medical decisions.
Issues like cloning, stem cells, and fetal research have become part of the national lexicon. In the wake of this high court decision, the fight over abortion rights will now be turning a new chapter marking only the beginning of many political and legal battles.
