The Supreme Court has confirmed that a draft opinion, joined by at least five justices, argues that court rulings legalizing abortion since 1973 were “grossly wrong” and “must be overturned”.
The court warns that the draft does not represent the “final position” of any justice. But even if it is changed in the coming weeks, the mere existence of the draft reflects a damning and damaging truth.
The Supreme Court is now just another political institution, reflecting the polarizing partisanship that continues to undermine the ideals of comity and compromise in public life.
Not only does the project take sides on perhaps the most moving issue of the last half-century, but it promotes a decidedly minority viewpoint. A new ABC/Washington Post poll reports that “54% of Americans think the 1973 Roe decision should be upheld while 28% think it should be overturned – a margin of about 2 to 1.”
However, if the fanatics behind the draft advisory are out of step with mainstream America, so are the hardliners on the other side who favor unfettered access to abortion. “A strong majority would like to see restrictions on the right to abortion,” according to a recent Marist poll.
“The debate is dominated by the extreme positions on both sides,” poll director Barbara Carvalho told NPR, but “that’s not where the audience is.”
That’s not where the court has been either. The original Roe decision – and its update in the Casey case 19 years later – fairly accurately reflects the rejection of extremes described by Carvalho. In Casey, the court amended Roe to allow more restrictions, provided they occur after a fetus was “viable” outside the womb, and did not place an “undue burden” on the mother.
This reasonable compromise was largely shaped by three centrist justices, all appointed by Republican presidents, who represent honorable GOP traditions that have largely disappeared. David Souter of New Hampshire, appointed by President Bush 41, was a classic New England progressive. Sandra Day O’Conner of Arizona, selected by Ronald Reagan, reflected a frontier tradition of limited government intrusion into privacy. Anthony Kennedy of California, another Reagan appointee, followed a moderate path that allowed him to be the swing vote in the field for many years.
Compare them to the three judges appointed by President Trump – Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – committed ideologues who came to court determined to overthrow Roe and Casey and please the powerful bloc of conservative Christians who voted overwhelmingly for Trump precisely because he promised to fill the court with reliable conservatives. A promise he kept.
Casey’s five-justice majority — augmented by two liberals, Harry Blackmun and John Paul Stevens — also tackled another critical issue directly related to the current debate: the clash between the popular will and basic rights.
Abortion haters say the issue should be left to the states, “that such a profound moral question should be decided by the people, not by nine unelected judges,” as a Wall Street op-ed claimed. Log. And it’s estimated that about half of the states would impose major restrictions if given the chance.
Sounds good, on the surface. But the American constitutional system has always limited the power of the majority to abrogate rights deemed fundamental, to decide a “profound moral question”. This is why school segregation, for example, very popular in southern states that wanted to preserve Jim Crow laws, was banned by the Supreme Court.
In Casey, the court made a similar point stating: “Our law provides constitutional protection for personal decisions relating to marriage, childbearing, contraception, family relations, upbringing and child-rearing. .”
Casey also addresses the issue of stare decisis, the importance of relying on precedent, as this doctrine protects the court from claims that it is simply bowing to shifting political power. “The Court”, wrote the majority, “must be careful to speak and act in such a way as to enable people to accept its decisions in the terms which the Court claims for them, as truly principled, not as compromise with social and political pressures.”
The Casey decision reflected a reasonable compromise and rejected extremes on both sides. He valued the fundamental priority that empowers individuals to make personal decisions about their lives. And he understood that abandoning the precedent for political reasons would deeply harm the court.
If the draft notice quashing Roe and Casey becomes law, that’s exactly what will happen. Women will lose a fundamental right that they have had for almost 50 years. And the Court’s credibility will suffer a serious, self-inflicted injury.
Steven Roberts teaches politics and journalism at George Washington University. He can be contacted by email at [email protected]