Dueling Takes on the End of Roe
So, what now?
The prevailing wisdom in the pieces I’ve read reacting to the Supreme Court’s repealing the abortion right it announced in Roe is best summarized by UC-Davis lawprof Mary Ziegler: “If the Supreme Court Can Reverse Roe, It Can Reverse Anything.”
If this decision signals anything bigger than its direct consequences, it is this: No one should get used to their rights. Predicting with certainty which ones, if any, will go, or when, is impossible. But Dobbs v. Jackson Women’s Health Organization is a stark reminder that this can happen. Rights can vanish. The majority wants us to think otherwise. They tell us that a right to abortion is unlike other privacy rights, such as the right to marry whom you wish or to use whatever contraception you choose. Abortion, in their view, is distinct from these, because it puts someone else’s life on the line. And so if we believe the Court’s conservative justices, this is a reckoning about abortion and nothing more.
But if the Court can so blithely reverse Roe—when all that has changed is that conservatives finally had the votes—we should wonder whether this is just about abortion.
After all, this decision did not come about solely because Roe was a weakly reasoned decision. This opinion did not come down because Roe launched our culture wars (a comforting but completely ahistorical lie). This decision reflects decades of organizing by a passionate and savvy social movement that argues that fetuses have fundamental rights—and that, in fact, the Constitution does have a view on abortion, and that view is that abortion is unconstitutional. This movement has been brilliantly successful in its efforts to control the Supreme Court, influence the rules of campaign spending, and remake the GOP.
And America’s politics have changed too. Dobbs is a product of a deeply divided country. The laws emerging from conservative states would have once seemed politically toxic, but now the gap between red and blue states has widened to the point that once-unthinkable laws are the new normal. Dobbs shows that the Supreme Court reflects and reinforces the dysfunction and ugliness of our politics—and does so at a time when faith in democratic institutions is already fraying.
In some ways, this has long been true. Progressive scholars have criticized a system in which five judges can determine which rights we have. Others have written for years that courts are not engines of social change and do not meaningfully protect constitutional values, and that the Court has, throughout its many years, been regularly partisan and out of step with popular opinion.
But until recently, there were limits on what the Court would do. Historically, the justices seemed reluctant to do anything too radical, lest they cause a backlash that damaged the power and prestige of the institution.
One might have expected any such guardrails to be particularly effective at protecting Roe, the best-known of any Supreme Court decision, and one that many Americans seem to support. The Dobbs decision makes plain that those limits are gone. In their place is a kind of constitutional partisanship, dictated by the interpretive philosophies and political priors of whoever currently has a majority on the Court and nothing more.
As recounted many times before, my interest in politics began relatively early, with the overlapping events of the Iran Hostage Crisis and the 1980 presidential election. My conlaw professor at Jacksonville State, Hope Davis, was very much a conservative and he shaped my views of the proper role of the Supreme Court in interpreting the Constitution. I believed then and continue to believe that Roe was wrongly decided and amounted to judicial overreach.
At the same time, that was the 1980s. Roe was a young decision then. It had not yet been reaffirmed, in an opinion authored by a Reagan appointee and joined by two others, in Casey, a decision that came down shortly after I left the Army and was starting my PhD program. That decision was handed down 30 years ago as of this upcoming Wednesday.
While I was frustrated by O’Connor, Kennedy, and Souter, I assumed that was pretty much the end of it. I was, of course, mistaken. Nonetheless, I see reversing a precedent of that magnitude, that has been relied on for almost half a century, as a radical act by the Supreme Court.
The Atlantic‘s Adam Serwer agrees but goes much further, bitterly asserting “The Constitution Is Whatever the Right Wing Says It Is.”
The Supreme Court’s decision overturning Roe v. Wade, allowing state governments to force women to give birth, is the result of decades of right-wing political advocacy, organizing, and electoral victory. It is also just the beginning of the Court’s mission to reshape all of American society according to conservative demands, without fear of public opposition.
[T]he Supreme Court has become an institution whose primary role is to force a right-wing vision of American society on the rest of the country. The conservative majority’s main vehicle for this imposition is a presentist historical analysis that takes whatever stances define right-wing cultural and political identity at a given moment and asserts them as essential aspects of American law since the Founding, and therefore obligatory. Conservatives have long attacked the left for supporting a “living constitutionalism,” which they say renders the law arbitrary and meaningless. But the current majority’s approach is itself a kind of undead constitutionalism—one in which the dictates of the Constitution retrospectively shift with whatever Fox News happens to be furious about. Legal outcomes preferred by today’s American right conveniently turn out to be what the Founding Fathers wanted all along.
The 6-3 majority has removed any appetite for caution or restraint, and the justices’ lifetime appointments mean they will never have to face an angry electorate that could deprive them of their power. It has also rendered their approach to the law lazy, clumsy, and malicious, and made the right-wing justices’ undead constitutionalism all the more apparent.
I am not arguing that these positions are insincere. Rather, the purpose of this undead constitutionalism is to present contemporary right-wing positions on consequential matters as eternal and constant, and therefore the only legitimate interpretations, when they are entirely malleable and dependent on changes in conservative political identity. The majority’s supposed originalism is a means to affirm novel legal interpretations grounded in present-day right-wing grudges as what the Constitution demanded all along. Every time those grievances shift, the interpretations will shift with them, even as the justices scour history anew for confirmation of ideological conclusions they would never question even if they failed to find it. That is ultimately why no rights that Americans currently possess are safe from this Court. Decisions about which rights survive and which do not are highly dependent on what it means to be a conservative at that time. There will always be new right-wing grievances to ameliorate by judicial fiat, justified by new abuses of constitutional history.
The core conservative belief about the culture war is that there is a Real America that is conservative, and a usurper America that is liberal. This, not historical research, not legal analysis, is the prime means of constitutional interpretation for its current majority. And while the justices will both pretend and insist otherwise, the public need not flatter their imperious delusions. They should take the right-wing justices’ vow that other constitutional rights are safe for precisely what it is worth—which is to say, absolutely nothing.
Way back in those undergraduate days, reading excerpts from landmark Supreme Court cases in Ducat and Chase’s Constitutional Interpretation, was how often Justices would have passages explaining that their ruling was contrary to their own policy preferences but that the plain language of the Constitution required them to strike down the law in question. While I’m confident that I would read some of those declamations with a more cynical eye at this stage, I took them at their word: they were doing their duty as they saw fit.
My view of the role of the Justices has certainly evolved over the years. I’m more attuned to the argument, of which Serwer’s is an extreme form, that strict adherence to the text of a document written in 1787 and amended rarely since inherently creates a conservative bias. But I nonetheless prefer that to Justice Brennan’s Rule of Five, which Server’s headline modifies: “the most important rule in constitutional law is that with five votes you can do anything.” I didn’t like that when it was the liberal wing that had the votes. I don’t like it now that it’s the conservatives.
My strong preference is for these matters to be settled by elected policymakers. Alas, as has been a long-running theme here, our system is simultaneously increasingly undemocratic and broken. The right can slowly advance its policy aims when it controls the levers of power and largely stymie the left from doing so when in the minority. And now the judiciary is stacked for what looks to be the foreseeable future.
Naturally, Ross Douthat has a contrary view. His NYT column, “The End of Roe Is Just the Beginning,” starts off as something of a victory lap:
By any reasonable political science theory, any normal supposition about how power works in our republic, this day should not have come.
The pro-life movement has spent half a century trying to overturn a Supreme Court ruling that was presumed to reflect the enlightened consensus of the modern age. It has worked against the public’s status quo bias, which made Roe v. Wade itself popular, even if the country remained conflicted about the underlying issue. Against the near-universal consensus of the media, academic and expert class. Against the desires of politicians who were nominally supportive of its cause, the preferences of substantial portions of American conservatism’s donor class.
Across all those years the pro-life cause also swam against the sociological and religious currents of American life, which have favored social liberalism and secularization. It found little vocal support among Hollywood’s culture-shapers and crusaders for social justice, or the corporate entities that have lately embraced so many progressive causes. It was hampered by the hiddenness of the injustice it opposed, the voicelessness of the constituency on whose behalf it tried to speak.
And it worked against the weight of the American class hierarchy, since pro-life sentiment is stronger among less-educated and lower-income Americans — exactly the wrong constituency to start with, according to cynics and realists alike, if you want to pressure the elite or change the world.
I wouldn’t bother citing Douthat at all, representing as he does a fringe worldview even among conservative Christians, but do so because he pivots to this:
While the pro-life movement has won the right to legislate against abortion, it has not yet proven that it can do so in a way that can command durable majority support. Its weaknesses will not disappear in victory. Its foes and critics have been radicalized by its judicial success. And the vicissitudes of politics and its own compromises have linked the anti-abortion cause to various toxic forces on the right — some libertine and hyperindividualist, others simply hostile to synthesis, conciliation and majoritarian politics.
At the same time the pro-life movement’s many critics regard it as not merely conservative but as an embodiment of reaction at its worst — punitive and cruel and patriarchal, piling burdens on poor women and doing nothing to relieve them, putting unborn life ahead of the lives and health of women while pretending to hold them equal.
To win the long-term battle, to persuade the country’s vast disquieted middle, abortion opponents need models that prove this critique wrong. They need to show how abortion restrictions are compatible with the goods that abortion advocates accuse them of compromising — the health of the poorest women, the flourishing of their children, the dignity of motherhood even when it comes unexpectedly or amid great difficulty.
These issues may be secondary compared with the life-or-death question of abortion itself, but they are essential to the holistic aspects of political and ideological debate. In any great controversy, people are swayed to one side or another not just by the rightness of a particular position, but by whether that position is embedded in a social vision that seems generally attractive, desirable, worth siding with and fighting for.
Here some of the pathologies of right-wing governance could pave a path to failure for the pro-life movement. You can imagine a future in which anti-abortion laws are permanently linked to a punitive and stingy politics, in which women in difficulties can face police scrutiny for a suspicious miscarriage but receive little in the way of prenatal guidance or postnatal support. In that world, serious abortion restrictions would be sustainable in the most conservative parts of the country, but probably nowhere else, and the long-term prospects for national abortion rights legislation would be bright.
But there are other possible futures. The pro-life impulse could control and improve conservative governance rather than being undermined by it, making the G.O.P. more serious about family policy and public health. Well-governed conservative states like Utah could model new approaches to family policy; states in the Deep South could be prodded into more generous policy by pro-life activists; big red states like Texas could remain magnets for internal migration even with restrictive abortion laws.
This, of course, is pure fantasy. There are certainly elements of the anti-abortion movement, primarily Roman Catholics, who strongly support social justice through a robust safety net. Most Evangelicals, though, emphasize personal responsibility. They believe the fetus is an “unborn child” but see an unwanted pregnancy as an individual failure, if not a product of sin. And, naturally, they see caring for the child the duty of the mother. (And, yes, I’m aware that the father tends to be largely excluded from this, especially if the couple is not married.)
We’re likely to see even uglier policies enacted in the Red states, with the Blue states seeking to become safe havens for abortion. That, rather obviously, puts poor and young women who live in Red states in a dire situation. There will almost be efforts by Red states to make it difficult, if not unlawful, to travel out of state for an abortion. That would be clearly unconstitutional. But I have no confidence at all that this Court will see it that way.