A Supreme Court the Will of the Minority
The Abortion Ruling would open up a dozen essential questions for the Supreme Court to consider, all of which are contentious from a moral and philosophical perspective.
The Supreme Court's decision to eliminate the constitutional right to abortion ended one long-standing Conservative dispute. Still, it raised serious questions about the legal basis for other personal rights, such as contraception and same-sex marriage.
Fear on the left and anticipation on the right that the abortion decision was the beginning of a sharp rightward shift on issues that directly touch on intimate personal choices resulted from the Supreme Court's lack of a clear and consistent response from its supermajority of conservative, Republican-appointed justices.
Justice Clarence Thomas' concurring opinion fueled those reactions by explicitly saying that precedents establishing those rights — which relied on the same legal reasoning as the now-overturned Roe v. Wade — should be reconsidered.
The majority opinion, written by Justice Samuel A. Alito Jr., sought to reassure those who fear a judicial assault on same-sex marriage and contraception. He declared that a decision that the 14th Amendment, which prohibits the government from taking away people's freedom unfairly, does not protect abortion rights should not be interpreted as jeopardizing precedents unrelated to ending fetal life. Nonetheless, his legal reasoning implicitly called into question a number of such precedents.
Don't be duped, said the three dissenting liberals on the court. "No one should be confident that this majority has completed its work," they said.
They wrote that the precedents being overturned by the court — Roe v. Wade and Planned Parenthood v. Casey, a 1992 case that reaffirmed key parts of Roe — were part of the same "constitutional fabric" that supported "established freedoms involving bodily integrity, familial relationships, and procreation."
Then there was Justice Brett M. Kavanaugh, who sought to assuage abortion rights supporters' fears of harsher and more wrenching changes to come. States, he believes, cannot constitutionally prohibit women from traveling to another state to obtain abortions. They couldn't even charge people with having abortions before Friday's ruling.
The decision on Friday had the immediate effect of allowing laws prohibiting or severely restricting abortion access to take effect in at least 20 states. However, the implications for potential future abortion disputes and many other rights proclaimed by the Supreme Court since the second half of the twentieth century could be profound.
Over several generations, the modern court gradually ruled that the 14th Amendment included a number of unwritten constitutional rights. In addition to establishing a right to abortion, the court invalidated involuntary sterilization, laws restricting who people could live with or marry, and decriminalizing contraception and same-sex intercourse.
Justice Alito's majority opinion is that the 14th Amendment protects only unwritten rights already recognized in 1868 when it was ratified. Many states at the time prohibited abortion, so it was incorrect for the Supreme Court to interpret the 14th Amendment as encompassing a right to abortion in Roe v. Wade in 1973, he reasoned.
The abortion majority — Justices Alito, Thomas, Kavanaugh, Neil M. Gorsuch, and Amy Coney Barrett — modestly portrayed itself as getting the Supreme Court out of the business of deciding which regulations go too far on the contentious subject. According to Justice Alito, the courts will not intervene as long as a state legislature has a "rational basis" for imposing a limit or ban on the procedure.
However, the court's three remaining Democratic appointees — Justices Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan — said in a blistering but impotent joint dissent that the ruling would instead force the Supreme Court to wade deeper into hotly contested moral and philosophical issues, listing a dozen examples of new questions.
These included whether and when a state must allow exceptions for a woman's life and health, what the ruling would mean for IVF and miscarriage management, whether a state could prohibit advertising for out-of-state abortions or assisting women in getting to out-of-state clinics, and whether a state could prohibit women from traveling out of state or receiving abortion medication mailed by out-of-state pharmacies.
Against that backdrop, Justice Kavanaugh's concurring opinion was especially significant because he appears to be the median judge on abortion issues. He controls the fifth vote determining which side becomes a majority in a closely divided case.
In addition to declaring that he believes states cannot prohibit residents from traveling to another state to obtain an abortion, Justice Kavanaugh strongly implied that abortion bans must include an exception when necessary to save a mother's life.
The dissenting justices characterized the possibility that the ruling will not prevent states that want to keep abortion legal from doing so as "cold comfort" for poor women who live in states that criminalize the procedure and lack the financial means to travel to another state.
Noting that "no language in today's decision prevents the federal government from prohibiting abortions nationwide, once again from the moment of conception and without exceptions for rape or incest," they wrote that if that happened, women seeking abortions would have to fund travel to Canada rather than New York or California.
Friday's decision also had far-reaching implications beyond potential future legal battles over abortion, calling into question the entire body of court precedents that established unwritten rights derived from the 14th Amendment's liberties protections.
Political battles over judicial nominations frequently revolve around abstractions: Conservatives and Republicans argue that laws should be interpreted in accordance with what their text originally meant. Liberals and Democrats argue that the framers defined rights broadly to allow for future evolution in their scope and meaning through new applications in response to contemporary societal understandings and conditions.
The abortion-rights decision provided a concrete example: The three liberals who dissented acknowledged that no one believed there was a right to abortion in 1868. Still, they also noted that women had no role in ratifying the 14th Amendment because they would not gain the right to vote for another half-century. They claimed that defining freedom from the perspective of an antiquated society reduces women to the status of second-class citizens.
Justice Alito denied that the decision jeopardized other precedents in which the Supreme Court proclaimed modern-era rights based on an evolving understanding of individual liberties guaranteed by the 14th Amendment, such as contraception, sexual conduct with a member of the same sex, or same-sex marriage.
He claimed that abortion was distinct because it involved the destruction of fetal life, which the state sought to protect.
"To ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns only the constitutional right to abortion," he added. "Nothing in this opinion should be interpreted as calling into question precedents that have nothing to do with abortion."
Even the conservative justices expressed disagreement about how much weight to place on that statement. On one end of the spectrum, Justice Thomas made no secret of his desire to go further and overturn those precedents as well.
Chief Justice John G. Roberts Jr. agreed with the majority that a Mississippi law prohibiting abortions after 15 weeks — with no exceptions for rape or incest, including minors — should be upheld. However, the chief justice, who has long favored narrow opinions and gradual change, declared that his five conservative colleagues had already gone too far in overturning Roe v. Wade.
Justice Kavanaugh, for his part, echoed and emphasized Justice Alito's claim that the court's decision to overrule abortion precedents does not imply overruling contraception and interracial or same-sex marriage precedents "and does not threaten or cast doubt on those precedents."
The dissenting justices were astounded by Justices Alito and Kavanaugh's attempts to distinguish abortion from contraception, same-sex intimacy, and marriage precedents. The bottom line, they wrote, was that the reasoning for the 14th Amendment and 1868 was the same across the board.