When the Supreme Court handed down, ending constitutional protections for abortion, there was anger (one protester said, "America is not ready for what's about to happen with the fall of Roe"), and there was also celebration ("Hallelujah," said Republican Congresswoman Mayra Flores. "I woke up praying for this"), as the seismic shift in American life set in.
Outside the Supreme Court building in Washington, one protester said, "I'm 21, and I'm terrified."
- ("CBS Saturday Morning")
Calling Roe "egregiously wrong from the start," Justice Samuel Alito, writing for the 5-4 majority, turned abortion policy back to the States. "Far from bringing about a national settlement of the abortion issue," Alito wrote, "Roe and Casey have inflamed debate and deepened division."
Division that came into sharp relief as people scrambled to understand how their state was affected. CBS News chief legal correspondent Jan Crawford reports that, as of late yesterday, abortion is illegal in 10 states, not available in three states as the law is unclear, and 13 states are poised to enact bans or severe restrictions.
States where abortion remains legal… and emboldened anti-abortion protestors.
"I think from the moment that the Supreme Court decided to take this case, red states, blue states, people on both sides of this debate have known what is coming," said Jessica Levinson, a professor at Loyola Law School in Los Angeles. "My students, and these are law students, and they're taking constitutional law, they are shocked that Roe v. Wade will no longer be the law of the land. This is a country even their mothers can't imagine."
Attorney Kathryn Kolbert was not at all surprised by the ruling: "Winning in the Supreme Court is a lot like 'Sesame Street.' You have to learn to count, and the only number that matters is five," she said.
"On this current court, there are five ultra-conservative justices who are not afraid to reverse historic opinions, who are not afraid to put their conservative views into the law."
In 1992 Kolbert argued Planned Parenthood v. Casey before a largely Republican-appointed Supreme Court. She won, but just barely. "Luckily, Justice Kennedy switched his vote at the last minute and joined Justice O'Connor and Justice Souter to write the joint opinion in Casey that established the fundamental right to choose abortion for the next 30 years," Kolbert said. "it wasn't a slam-dunk decision, but it was much better than what we are getting now."
In 1973 when Roe v. Wade was decided, there were also shockwaves nationwide, as anti-abortion laws of 46 states were rendered unconstitutional.
In most states, abortion was illegal. Four states, including New York, had passed laws legalizing abortion. Thirteen others had started allowing it, with restrictions.
Those in the anti-abortion movement, believing the Court silenced their deeply-held views, mobilized immediately, and have been marching and making their voices heard ever since. Disappointed by Republican judicial appointees and Republican presidents, the movement became more politically and legally strategic.
Levinson said, "I think there's been a concerted effort for years now by the conservative legal movement that, 'We don't want any more surprises. No more David Souters. No more Anthony Kennedys. We don't want justices where we're not sure where they're gonna come out. We want a done deal on a lot of these big constitutional decisions.'"
In 2016 Donald Trump promised to give them what they wanted. "The justices that I'm going to appoint," he said at the final presidential debate, "will be pro-life, they will have a conservative bent."
Trump then delivered three reliably solid conservative judges to the Supreme Court.
Kolbert said, "They were put on this court for a purpose, which was to overrule Roe and Casey. They are delivering on that mandate, and frankly, they're not gonna stop with abortion."
And while Justice Alito's majority opinion insists that nothing in this Court's decision "should be understood to cast doubt on precedents that do not concern abortion," Justice Clarence Thomas' separate opinion (which none of the other conservatives joined) raises questions about that:
"In future cases," Thomas wrote, "we should reconsider all of this Court's substantive due process precedents, including Griswold [contraception], Lawrence [same-sex intimacy], and Obergefell [same-sex marriage]. Because any substantive due process decision is 'demonstrably erroneous' ... we have a duty to 'correct the error' established in those precedents..."
Levinson said, "When we look at cases like the right to obtain contraception, like the right to marry the partner of your choosing, maybe that's somebody of a different race, maybe that's somebody of the same sex, I would say the rationale of those cases is now in question."
Crawford asked, "But in the Dobbs decision, the Court says, 'Well, wait, abortion is different because that involves a life.' Do you buy that?"
"I don't," Levinson replied. "Obviously abortion is different than getting married. Obviously abortion is different than using contraception. But in terms of the legal rationale, and whether or not it gives room for the Court to later overturn decisions like the decision saying marriage is a fundamental right, that there's the right to same-sex marriage, I think it leaves that room."
Crawford asked Erika Bachiochi, a socially conservative legal scholar, if she sees any effort to ban contraception. "I see not a single effort to do anything like that, absolutely not," she replied.
Bachiochi sees this Supreme Court decision as long overdue. "I am gratified for a number of reasons," she said.
Some of them, reasons you might not expect, as she calls herself "a pro-life feminist."
Crawford asked, "Wait, are you saying that abortion rights is anti-woman, anti-feminist?"
"Yes. That is in fact my claim," Bachiochi replied. "There's all sorts of ways in which scaling back dramatically on, you know, what we've seen as an abortion right in this country can really help us to not rely on abortion as a backstop. And I think that kind of reliance has not been good for women."
She believes society should refocus on currently underfunded programs supporting women, in terms of health care, better working conditions, and raising a family. "Obviously, not all women wanna become mothers," Bachiochi said. "But those who do are really not doing well in this country."
The angry abortion stand-off, she said, has kept women from working together to find solutions.
Crawford asked, "So, you see this moment when the Court is overturning Roe, overturning Casey, that this is a moment of hope and potential change in a positive way?"
Bachiochi said, "Absolutely. Is there a way that people can then come together on right and left, maybe with different solutions to these problems, but at least can sit at a table together? I mean, that's my hope."
On this point, both sides agree: there is hope. For Kathryn Kolbert, it's time for abortion rights advocates to get even more political: "Our opponents have been working for 50 years to take over the Republican Party and to be anti-abortion voters," she said. "And we need to be pro-choice, pro-abortion rights voters as well. And that means showing up at every election. There's two every year, not just once every four years. And lastly, and I think this is also equally important, we need to make some noise."
Because, like it or not, this conservative court is likely to be with us for a very long time. Levinson stated, "This Court, if it stays together in some sort of form that looks like this for a number of years, is going to usher in a conservative legal revolution."
For more info:
- Jessica Levinson, professor, Loyola Law School
- Attorney Kathryn Kolbert
- "Controlling Women: What We Must Do Now to Save Reproductive Freedom" by Kathryn Kolbert and Julie F. Kay (Hatchette), in Hardcover, eBook and Audio formats, available via Amazon, Barnes & Noble and Indiebound
- Erika Bachiochi, Ethics and Public Policy Center
Story produced by Mary Lou Teel and Robert Marston. Editors: Carol Ross and Karen Brenner.
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