A Supreme Court Crisis

On life, liberty and Roe

Hi, 

My new piece for you is about the most consequential thing the Supreme Court has done in a very long time—overturn Roe.

I use this newsletter to share some stories and thoughts that go beyond my show, and if you want to receive all of my pieces, you can subscribe for the full thing here:

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This is now a different society

After about 50 years, Roe v. Wade is gone.

The Supreme Court overturned the longstanding precedent recognizing a woman’s right to choose.

You already know what happened, and how it will impact people. This kind of fundamental shift will still, however, take a long time to absorb. 

We are now, in 2022, living in a different society than we were last month or year. Legally recognized rights have now been constrained, cut down and rolled back. And we are entering a new era where politicians will act on this new legal framework. They can test its limits. They can go beyond laws of compelled childbirth. They can see what other measures the government can pass. 

If politics is addition, oppression is subtraction. 

Why?

Why did the Court take this rare step of overturning precedent and eliminating a recognized human right under the Constitution?

Five Justices voted to overturn Roe entirely. (Roberts voted to uphold the abortion ban in question, but not formally overrule Roe.) The Justices who overturned Roe assert in their ruling that:

• They are actually neutral on the question of abortion

• They made their ruling based on what the Constitution says

• They are simply returning this issue to state governments to decide in each state

If overturning Roe overlaps with the political agenda of the Presidents who appointed them, and their own religious views, the ruling insists that’s a coincidence because all they did was legal and historical analysis.

Neutral on “prenatal life”

Here’s how the opinion puts it:

Our opinion is not based on any view about if and when prenatal life is entitled to any [legal] rights.

The law requires rulings be written and explained. And this is the best argument they could come up with. It doesn’t make much sense. 

A “neutral” view would almost certainly honor precedent, which courts usually do, rather than overturning it. 

The opinion repeatedly invokes pro-life language and values (rather than “neutrality”), from the above reference to “prenatal life” to demeaning millions of doctors as “abortionists.”  The dissent stresses how Alito is most certainly taking sides to change current law, so that governments can legally compel pregnancy. 

If the Court eliminates this personal, liberty and privacy right, under legal logic, that endangers other similar rights. Alito cites cases on the right to marriage and contraception to argue they are safe, and this is different, because those rights do not result in “destroying… fetal life.”

First, this is another tell that rather than interpret rights—does the Constitution provide personal liberty?—he is invoking his own (apparently religious) view that abortion destroys “fetal life.” 

Second, this doesn’t even make sense on its own terms. While the Court has recognized a right to contraception since 1965, before Roe, there are certainly people who believe it interferes with or prevents “life,” or violates their religion. (That’s why some religions proscribe contraception. As they say in court, duh.) Third, and most practically, this ruling can be read to allow bans all the way to the point of fertilization, which can impact measures like pill abortion and Plan B. That’s a collision course with the right to contraception.

This ruling would seem to imperil cases like Griswold (right to buy contraceptives), Lawrence (overruling criminal sodomy laws that jailed people for sex), and Obergefell (right to marriage). Does this Court even follow its on reasoning, or is it “in denial” about another unpopular extension of this ruling that may come another day?

That’s a real question. It’s hard to say the final answer at this point. 

At least regarding four of the justices in that majority—and three of them are recent Trump appointees. 

One other Justice does answer this point in a concurring opinion.

Clarence Thomas openly states each of those precedents should be overturned. In other words, he argues this Court should overturn precedent so that state governments may legally:

• ban contraception 

• ban gay people from getting married

• imprison gay people for having sex

That’s really in the ruling. And in its bluntness, it’s a warning to anyone in America who believes governments should not exercise that kind of power and oppression over people’s liberty. But of course, the whole ruling already limits the liberty of half the population.

And if you’re curious, here’s some recent newsletter coverage of the ongoing insurrection hearings:

The Smoking Gun in these Jan. 6 Hearings