Like it or not, here’s the reality: The Supreme Court has become the site of a new political Forever War.
That court has now done what liberals insisted it would and what conservatives alternately prayed for and denied was their intention all along: Overruled Roe v. Wade and Planned Parenthood v. Casey. Now abortion can be outlawed, first in Republican-run states and perhaps eventually in the nation as a whole.
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The best summary of what just happened comes from the dissent by the liberal justices: “The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them.”
Here are five takeaways from this political and legal earthquake.
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The decision written by Justice Samuel Alito flatly declares that “Roe was egregiously wrong from the start.” It rules that because a right to abortion is neither explicitly laid out in the Constitution nor “deeply rooted in the Nation’s history and traditions,” it deserves no protection as a fundamental right.
Therefore, states will be free to enact whatever restrictions on that right they choose. The decision also drips with contempt both for the court’s prior abortion jurisprudence and for abortion rights itself.
“The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions,” Alito writes, which means it therefore does not exist. The ruling dismisses the effect on women’s liberty by saying: “Women are not without electoral or political power,” and therefore they might try to protect their rights with their votes.
Crucially, Alito also sent a clear message to states that they may restrict abortion in absolutely any way they like. He specifies that going forward, abortion restrictions will be judged on rational-basis review, the lowest standard courts apply to judging new laws. If the state can show that it has any rational basis at all for a new restriction, the court will uphold it.
The court could have opted for a less radical decision. It could have upheld the 15-week Mississippi abortion ban at issue in this case while further eroding abortion rights by ending the fetal viability standard, without overturning the fundamental right itself. Instead it opted for a much more sweeping decision.
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In his concurrence, Justice Clarence Thomas gives away the game, saying explicitly that the court should go on to overturn the cases that established the right to use contraception, overturned sodomy bans and established the right to same-sex marriage.
“After overruling these demonstrably erroneous decisions,” Thomas goes on, the court should expand its view outward to keep overruling more and more decisions.
Thomas bases that agenda on a rejection of “substantive due process.” He rejects the idea that the 14th Amendment’s guarantee of liberty incorporates a number of rights, such as the right to privacy, even if they are not explicitly mentioned in the text.
Yet as Justice Stephen G. Breyer’s dissent notes, the men who wrote the Constitution and the 14th Amendment granted almost no rights at all to women. Breyer unloads on the majority as follows:
But as the court’s conservatives have already shown, the historical and textual approach they are now using is infinitely flexible, allowing them to arrive at any decision they want.
In the future that’s likely to mean a further erosion of the separation of church and state, fewer rights for workers, increasingly restricted voting rights, a further entrenchment of minority rule, and ever greater limits on government’s ability to solve problems.
That likely includes dramatically hobbling the Environmental Protection Agency’s authority to combat climate change at a time when the future human habitability of our only planetary home in the known universe is in grave doubt.
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That court has now done what liberals insisted it would and what conservatives alternately prayed for and denied was their intention all along: Overruled Roe v. Wade and Planned Parenthood v. Casey. Now abortion can be outlawed, first in Republican-run states and perhaps eventually in the nation as a whole.
Sign up for a weekly roundup of thought-provoking ideas and debates
The best summary of what just happened comes from the dissent by the liberal justices: “The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them.”
Here are five takeaways from this political and legal earthquake.
1
The court’s decision is both straightforward and incredibly sweeping.
Return to menuThe decision written by Justice Samuel Alito flatly declares that “Roe was egregiously wrong from the start.” It rules that because a right to abortion is neither explicitly laid out in the Constitution nor “deeply rooted in the Nation’s history and traditions,” it deserves no protection as a fundamental right.
Therefore, states will be free to enact whatever restrictions on that right they choose. The decision also drips with contempt both for the court’s prior abortion jurisprudence and for abortion rights itself.
“The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions,” Alito writes, which means it therefore does not exist. The ruling dismisses the effect on women’s liberty by saying: “Women are not without electoral or political power,” and therefore they might try to protect their rights with their votes.
Crucially, Alito also sent a clear message to states that they may restrict abortion in absolutely any way they like. He specifies that going forward, abortion restrictions will be judged on rational-basis review, the lowest standard courts apply to judging new laws. If the state can show that it has any rational basis at all for a new restriction, the court will uphold it.
The court could have opted for a less radical decision. It could have upheld the 15-week Mississippi abortion ban at issue in this case while further eroding abortion rights by ending the fetal viability standard, without overturning the fundamental right itself. Instead it opted for a much more sweeping decision.
2
The court is only getting started.
Return to menuIn his concurrence, Justice Clarence Thomas gives away the game, saying explicitly that the court should go on to overturn the cases that established the right to use contraception, overturned sodomy bans and established the right to same-sex marriage.
“After overruling these demonstrably erroneous decisions,” Thomas goes on, the court should expand its view outward to keep overruling more and more decisions.
Thomas bases that agenda on a rejection of “substantive due process.” He rejects the idea that the 14th Amendment’s guarantee of liberty incorporates a number of rights, such as the right to privacy, even if they are not explicitly mentioned in the text.
Yet as Justice Stephen G. Breyer’s dissent notes, the men who wrote the Constitution and the 14th Amendment granted almost no rights at all to women. Breyer unloads on the majority as follows:
Those men also didn’t believe that Black and White people have the right to marry one another; only later did the court rule that they do. Presumably this court would not extend the logic of this decision to taking away that right as well.When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship.
But as the court’s conservatives have already shown, the historical and textual approach they are now using is infinitely flexible, allowing them to arrive at any decision they want.
In the future that’s likely to mean a further erosion of the separation of church and state, fewer rights for workers, increasingly restricted voting rights, a further entrenchment of minority rule, and ever greater limits on government’s ability to solve problems.
That likely includes dramatically hobbling the Environmental Protection Agency’s authority to combat climate change at a time when the future human habitability of our only planetary home in the known universe is in grave doubt.
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