Opinion: The Supreme Court appears ready to trigger a social and political earthquake

Will the court rely on viability (the ability of the fetus to survive outside the womb) as a dividing line and decide that it was not constitutionally required more than any other line? Or would a conservative majority in the court give Mississippi a win by concluding that the Constitution provides no protections for the right to choose an abortion?

Prior to Wednesday, it seemed hard to imagine the second path — the repeal of abortion rights — simply because generations of Americans have been brought up to take abortion rights (and Roo) for granted. The repeal of the 1973 resolution would be a profound statement about women’s freedom and autonomy – a social and political earthquake that would fundamentally change the lives of many.

Reversing Roe’s case may encourage anti-abortion lawyers to ask the court for more — including the ruling that a fetus is a person with rights and that abortion is unconstitutional everywhere in the United States. The decision to exclude Roe could mean that somewhere between 20 and 25 states will criminalize nearly all abortions, changing lives across vast swathes of the South and Midwest. Repealing Roe’s ruling would likely cause public opinion to conflict — more than half of Americans do not want abortion rights to be rescinded — putting the court at risk of a backlash that could damage its public standing and spur talks about court reform. It appears that the judges may want to avoid causing this kind of political fallout, at least immediately. The story of SB8 in Texas – another law currently under review by the court after last month’s pleadings – appears to be just as suggestive. This abortion law prohibits abortions as early as six weeks — about two weeks after someone reasonably knows they are pregnant — and law enforcement is outsourced to any private citizen, who can sue people who have had abortions or helped those who request them. The court allowed SB8 to go into effect in September, but then the judges’ popularity waned. This drop, noted after the court’s refusal to ban SB8, very likely has more to do than abortion, but many Americans increasingly view judges as partisan, and don’t like it a bit. The judges didn’t seem happy about that either. Several of them took the microphone to insist that judges are not, in the words of Amy Connie Barrett, “partisan hackers.” Then the court put SB8 on a fast track and seemed to take the abortion issue seriously. This hardly meant that Roe was safe. But to many observers, the report indicated that judges were concerned about managing the political consequences of rolling back abortion rights.

In Dobbs’ case, some observers have questioned whether conservative court judges want to strike a blow against abortion rights while minimizing damage to the court’s institutional legitimacy. One possible way to do this: say the viability line didn’t make sense and stop there.

In Wednesday’s argument, Chief Justice John Roberts appeared to have that in mind. He appears to acknowledge that pregnant women depend on the availability of legal abortion but portrays the feasibility line as arbitrary. “In terms of validity, I don’t see that having to do with the question of choice at all,” Roberts said in the questioning of Attorney General Elizabeth Prilugar.

Eliminating viability alone would be a huge blow to abortion rights. A decision to do so would embolden conservative states, fan the ban on abortion early in pregnancy, rewrite the rules for abortion law, and create uncertainty about the future of abortion rights. However, most conservative judges seemed to want to go much further.

Perhaps unsurprisingly, Judges Clarence Thomas, Samuel Alito and Neil Gorsuch seem inclined to immediately reverse Roe. Thomas wrote often that Roe’s decision was a mistake. On Wednesday, he pressed Prelogar and Julie Rikelman, an attorney with the Jackson Women’s Health Organization (the state’s only remaining abortion clinic), about where the right to abortion came from.

Alito expressed skepticism about the way Roe had entrenched the right to abortion in the Fourteenth Amendment, questioning whether “any judicial decision” on or shortly after the amendment’s passage in 1868 recognized that “abortion was a right.” Gorsuch suggested that if the court dispenses with validity, there is no other “clear principle” for judges to follow besides Roe’s opposite.

The court’s newest judges, Brett Kavanaugh and Amy Connie Barrett, seemed ready to follow Thomas, Alito and Gorsuch in the opposite of Rowe. Kavanaugh suggested that a better course might be to declare the Constitution neutral on abortion—and that states could decide for themselves on abortion.

In his question about Rickelman, he stated that the court was “compelled by the position it takes… to stand by the most controversial social debate in American life.” He suggested that the Constitution did not recognize “the right to choice or the right to life” – and that the court “must be strictly impartial on the question of abortion, neither pro-choice nor pro-life”.

Kavanaugh’s idea of ​​compromise seemed very different from Roberts’s. Anti-abortion lawyers have argued that abortion itself is unconstitutional because the fetus has rights under the constitution. Kavanaugh seemed to want to block that possibility, at least for now. But his compromise was not to postpone the precedent but to allow roughly half of the countries to ban abortion.

Amy Connie Barrett, another major vote, took aim at Rickleman’s argument that women depend on abortion for equal citizenship. Mississippi had stressed that if women needed an abortion, they didn’t have to anymore. Barrett seemed to feel the same way. She put forward Safe Harbor laws – which allow people to safely (and without penalty) deliver unwanted newborns in specific locations such as hospitals and fire stations – as a signal that women do not need to rely on abortions anymore.

She suggested that Roe and subsequent cases focused on how forced paternity “impedes women’s access to the workplace and equal opportunity”. “Why don’t the safe harbor laws care about this problem?” asked Barrett Rickelman in one exchange. She suggested that pregnant women could simply choose to adopt and avoid any obstacle to achieving equal citizenship.

If you think this sounds like a court that is ready to reverse Roe, you’d be right.

The decision to reverse Roe would likely be unpopular — polls indicate that Americans support a variety of abortion restrictions but want to keep Roe. But the court’s conservative majority has been handpicked (a culmination of Donald Trump’s pledge) to resist this kind of political pressure. In 1992, the court was widely expected to overturn Roe’s case in a decision called Planned Parenthood v. Casey, but when the time came, three Republican candidates, Sandra Day O’Connor, Anthony Kennedy and David Sutter, refused to pull the trigger and voted to preserve abortion rights. Looks like there will be no rescue for Roo this time. The conservative legal movement has perfected its scrutiny, grooming judges whose interpretive approach naturally leads to the conclusion that Roe was wrong. Presidents have rejected unanimous candidates in favor of judges who arouse al-Qaeda’s enthusiasm and draw voters to the polls. The end result is that the court appears ready to immediately reverse Roe’s case, and the political consequences damned. And if the court is no longer concerned about the political backlash, there is no telling what it will do next. .

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