By overturning the 1973 Roe v Wade decision, the Supreme Court Friday overturned more than five decades of broad availability of abortion in the United States.
The justices also transformed the lives of Americans who end their pregnancies, reshaped the fall midterm congressional elections, refocused reproductive rights from a national issue to a state matter – and set in motion a new wedge of disunity in a country already divided on social, cultural and economic matters.
At the same time, the high court’s decision, coming during a week in which two searing Capitol Hill hearings shined a harsh light on the potentially criminal conduct of Donald Trump, sealed the significance of the 45th president’s place in American history. Half of the justices in the 6-3 decision who voted to overturn Roe were appointed by Mr. Trump, a onetime supporter of abortion rights turned outspoken opponent of legal abortion.
Moreover, the decision marks the high point of a decades-long effort by legal conservatives not only to restrict abortion significantly and to adopt a “strict constructionist” view of the Constitution based on the specific intentions of the authors of the country’s founding document but also to reshape the landscape of American jurisprudence, which since 1954 has added rights to the country’s citizens – on race, gender, disability, marriage equality – rather than constrict them.
In characterizing the court’s action as a “perfect decision for the 18th century,” retired Canadian Supreme Court justice Rosalie Abella, an ardent supporter of abortion rights now holding the Pisar Chair at Harvard Law School, reflected the debate over whether the American Constitution, written in 1787, is a fixed document or, in the words of retiring Justice Stephen Breyer, a “living document.” The justices’ ruling places the contemporary Supreme Court squarely on the side of the former.
The decision also reflected the modern conservative view that major social decisions are property of the province of state and local governments that, according to this line of thinking, are closest to the people.
As a result, the battle on abortion now moves to the states, 13 of which enacted restrictions after a draft of the decision leaked in early spring. Other states have had restrictions in place for years.
“It isn’t as if this is an overnight change,” Kristin Luker, a professor of law and sociology at the University of California Berkeley, and the author of several books on abortion, said in an interview. “For much of the country, abortion already has been restricted. I’m most worried about the symbolic impact of this. It is a blow against women’s rights. The original motivation for many people of Roe was that it made women equal to men. Those days are over.”
The decision marks one of the few times in which the Supreme Court – which the 19th century humorist Finley Peter Dunne said “follows the election returns,” a maxim that had become a truism – has defied public opinion in a highly visible and divisive way.
The Gallup poll, which has measured public sentiment about the procedure for decades, found for the first time that a majority of American voters now believe abortion is morally acceptable. The survey showed that opposition to abortion in any form was at its lowest point since 1995, dropping six points in a year to 13 per cent.
The intent and possible impact of the high court’s decision may in fact produce a Newtonian equal and opposite reaction. The first arena for that reaction very likely will be November’s congressional elections.
“This could be a big, motivating election issue,” said Judith Brown, an emerita professor at Northeastern University Law School who was active in the women’s movement in Massachusetts from the mid-1960s. “They are going to feel the court is dragging this country back to the world that existed in the 1940s and 1950s, where a bunch of aging white men ruled everyone’s lives. That’s their Nirvana and they are working very hard and quite injudiciously taking us backwards. This is a judicial power grab – no respect for precedent, no respect for the idea this is a difficult matter.”
At least five of the justices, all appointed by Republican presidents, believe in the strict constructionist outlook that holds that the judiciary should not be involved decision-making on social issues and erred when it did so; presciently, the late Justice Ruth Bader Ginsburg worried that was a legal vulnerability for the survival of Roe.
These justices clearly believe they are closing the door on the abortion issue but in fact may well be opening lower courts, and eventually the high court itself, to new battles, prompted by doctors recommending abortions across state lines and by Americans travelling across state lines to procure them.
“We may soon be seeing an entirely new arena of legal battles over the legal implications of this decision,” said Daniel Urman, a constitutional scholar at Northeastern University.
Indeed, this ruling very likely will spawn more contention and more legal action than any since the 1954 decision on the desegregation of public schools.
“This ideological-motivated decision is going to create legal chaos and a reproductive public health-care crisis for decades to come,” said Alesha Doan, a University of Kansas scholar and author of Opposition and Intimidation: The Abortion Wars and Strategies of Political Harassment. “The states’ willingness to strip people of their human rights to control their own bodies and their own lives is unprecedented, and it certainly will not end with abortion.”
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