Four years ago I wrote a book entitled Supremely Partisan about the Supreme Court, in which I argued that the justices were arriving at outcomes left and right based not on the Constitution, but on preferred policy choices. Because of this, I feared this venerated institution would lose public confidence as polls showed that public confidence in the Court ebbs to the extent that decisions appear political, and the justices are perceived as mere politicians in robes.
I predicted that with a Trump presidency, and another conservative justice or two (I never dreamed he would get three picks), the Court would move swiftly to expand gun rights (from all reports they will), reaffirm capital punishment (they did even where prosecutors and defense lawyers agreed that the death-row prisoner was not eligible for the death penalty because of intellectual disability), and, horribile dictu, eventually overrule Roe v. Wade (looks like they will).
Today, as Justice Sotomayor observes a “stench” emanating from the partisan nature of Court decisions, I am reminded of Churchill’s 1946 comment about his prescience in the 1930s, “I saw it all coming and cried aloud.”
A bedrock feature of the rule of law is stare decisis--or “let the decision stand”--the monumental principle that judges should stand by precedent and not overrule prior decisions lightly. The principle is most strongly applicable, Chief Justice Roberts agreed in his confirmation hearings, to “super precedents” or “super-duper precedents” like Roe, relied on by the public for almost 50 years. While controversial at the time, Roe is today the preferred policy choice of 60 per cent the American people who do not want to see Roe overturned. Indeed, abortion on request is accepted in 72 countries, including Catholic countries like the Republic of Ireland and Spain. Only 24 countries in the world ban abortion altogether.
The justices from Breyer to Barrett, for obvious institutional reasons, don’t want to be perceived as “partisan hacks.”Their differences, Breyer insists are philosophical, not political. This is a tough one to swallow, particularly after the oral argument in the Mississippi abortion case last Wednesday.
The basic point is that in 1973 seven justices, including three Nixon appointees, recognized a woman’s fundamental right to terminate her pregnancy in the first trimester or twelve weeks of pregnancy. As elaborated nineteen years later in Planned Parenthood v. Casey, this right continues until “viability,” an objectively verifiable moment when the child can live outside the mother. Viability is now thought of as occurring 24 weeks after conception.
The Mississippi statute at issue in the case heard last Monday prohibits all abortion 15 weeks after conception. There are no exceptions for rape or incest, and no one talked about the health or welfare of the mother.
The narrow issue presented in the case was whether the Mississippi statute was unconstitutional, and the Chief Justice implicitly wondered whether the Court could reaffirm Roe, and at the same time uphold the statute.
No, thundered the Trumpists on the Court, joined by Justices Thomas and Alito, who for years have been determined to overrule Roe. Let’s go for it. Overrule Roe and extinguish a fundamental right that has been recognized for almost 50 years.
A fillip was added by Justice Kavanaugh, who thought that the Constitution is neutral, neither being pro-life nor pro-choice, thus requiring the Court to leave it to the states.
Had the Court taken this approach in Brown v. Board of Education, as Kavanaugh hypothesized, we would still have school segregation in Mississippi and 16 other southern and border states.
Lest anyone think this all has anything to do with law, just take the musings of Justice Barrett from the bench. One can’t reasonably argue that abortion is necessary for women to take their rightful position in the workplace, have careers and break the glass ceiling. There are “safe-haven laws” where a woman, without legal exposure, can deposit a newborn in a firehouse or police station and relinquish all parental rights. This is adoption without formality. Barrett, who is the only mother on the Court, has seven children, two of whom are adopted. Adoption existed at the time of Roe. Women could always do that.
Textualists argue that the Constitution does not mention childbirth, abortion or when life begins. True, but that train has left the station. The Constitution does not mention privacy, contraception or decency or marriage for that matter, but that’s never stopped courts from ruling on them in the past.
Originalists argue that the proper interpretation of the Constitution is the original understanding of its meaning by the society at the time, in Antonin Scalia’s formulation.
But abortion was totally legal at common law throughout the 18th and 19th centuries. It was only in the 20th century that it was criminalized in some states. And it was only in the mid-20th century that it was politicized as Republicans shifted their strategy to target Catholics and evangelicals. There are votes out there, Karl Rove reasoned. Had the society at the time of the Fourteenth Amendment in 1868 wanted to prohibit abortion, they would have done so.
Then, Kavanaugh inanely argued that the Court overruled the decision in Plessy v. Ferguson upholding segregation 56 years after it was issued, and then overruled its 5-4 decision in Bowers v. Hardwicke, which approved the criminalization of homosexual acts between consenting adults, by Lawrence v. Texas 17 years later. Just wait, said Scalia in dissent, the next thing will be gay marriage. They upheld that too. But these were cases where they overruled prior decisions in the interest of personal liberty.
Now, at least five justices may be poised to overrule Roe v. Wade to restrict personal liberty, and leave the fate of poor women, perhaps sick women, or women impregnated by rape or incest in the hands of mostly male legislators in perhaps 26 states poised to outlaw reproductive rights, many of which had until 1952 legalized segregation. And this is America in 2021? Makes you wonder whether we are really a government of laws, and not men and women.
James D. Zirin is a former federal prosecutor in the Southern District of New York.
This article was originally published at History News Network