Written by Charlie Savage
The Supreme Court’s decision Friday to end the constitutional right to abortion concluded one battle for now but immediately posed another far-reaching question: whether the judicial ground under rights in other personal matters, including contraception and same-sex marriage, is now also shaky.
The lack of a clear and consistent answer among the supermajority of conservative, Republican-appointed justices who control the Supreme Court prompted fear on the left, and anticipation among some on the other side of the ideological divide, that the abortion decision could be just the beginning of a sharp rightward shift on issues that directly touch intimate personal choices.
Those reactions were stoked by Justice Clarence Thomas’ concurring opinion, in which he explicitly said precedents establishing those rights — which relied on the same legal reasoning as the now-overturned Roe v Wade — should be reconsidered.
The majority opinion by Justice Samuel Alito sought to be more reassuring to those who see a judicial assault coming on same-sex marriage and contraception. He declared that a ruling that the 14th Amendment — which forbids the government to take away people’s freedom unfairly — does not protect abortion rights should not be seen as imperilling precedents unrelated to ending foetal life. Yet his legal rationale implicitly called a series of such precedents into doubt.
The three dissenting liberals on the court said, in essence, don’t be fooled. “No one,” they said, “should be confident that this majority is done with its work.”
They wrote that precedents being cast aside by the court — Roe v Wade and Planned Parenthood v Casey, a 1992 case that reaffirmed core parts of Roe — were part of the same “constitutional fabric” behind “settled freedoms involving bodily integrity, familial relationships and procreation.”
Then there was Justice Brett Kavanaugh, who sought to calm fears among supporters of abortion rights of even harsher and more wrenching changes to come. In his view, he said, states could not constitutionally bar women from traveling to another state to obtain an abortion. Nor could they prosecute people for abortions before Friday’s ruling took effect.
Friday’s opinion had the immediate effect of allowing laws banning or severely curbing access to abortion to snap into place in at least 20 states. But its implications for potential future disputes over abortion and for many other rights proclaimed by the Supreme Court since the second half of the 20th century could also be profound.
Over several generations, the modern court gradually ruled that a series of unwritten constitutional rights existed as part of the 14th Amendment. In addition to declaring a right to abortion, the court struck down involuntary sterilisation and laws interfering with who people could choose to live with or marry, along with decriminalising contraception and same-sex intercourse.
The heart of Justice Alito’s majority opinion is that the 14th Amendment protects only unwritten rights that were already understood to exist in 1868, when it was adopted. Many states then banned abortion, so it was wrong for the Supreme Court, in 1973’s Roe v Wade, to interpret the 14th Amendment as encompassing a right to abortion, he reasoned.
The majority bloc in the abortion case — Alito, Thomas, Kavanaugh, and Justices Neil Gorsuch and Amy Coney Barrett — modestly portrayed itself as getting the Supreme Court out of the business of drawing lines about which regulations go too far on the contentious subject. Under Alito’s opinion, so long as a state legislature has a “rational basis” for imposing a limit or ban on the procedure, the courts will not intervene.
But in a blistering but impotent joint dissent, the court’s three remaining Democratic appointees — Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan — said the ruling would instead force the Supreme Court to wade further into hotly contested moral and philosophical issues, listing a dozen examples of new questions.
Those included whether and when a state must allow exceptions for a woman’s life and health, what the ruling would mean for in vitro fertilisation and miscarriage management, whether a state could bar advertising for out-of-state abortions or helping women get to out-of-state clinics, and whether it could bar women from traveling out of state or receiving abortion medication mailed by out-of-state pharmacies.
“The majority does not save judges from unwieldy tests or extricate them from the sphere of controversy,” they wrote. “To the contrary, it discards a known, workable and predictable standard in favour of something novel and probably far more complicated.”
Against that backdrop, the concurring opinion by Kavanaugh was particularly important because he appears to be the median judge on abortion issues — meaning he controls the fifth vote that decides which side to make into a majority in a closely divided case.
In addition to declaring that he thinks states cannot bar residents from traveling to another state to obtain an abortion, Kavanaugh strongly suggested that he thinks the Constitution requires abortion bans to include an exception when necessary to save the life of a mother.
The dissenting justices portrayed the prospect that the ruling will not prevent states that want to keep abortion legal from doing so as “cold comfort” for poor women in states that criminalise the procedures and who lack the money to travel to another state.
And, noting that “no language in today’s decision stops 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 need to finance travel not to New York or California, but to Canada.
Friday’s ruling also had implications that stretched far beyond potential future legal fights over abortion, calling into question the entire sweep of court precedents that established unwritten rights as deriving from the 14th Amendment’s protections for liberty.
Political fights over judicial nominations often dwell in abstractions: Conservatives and Republicans press the view that the laws should be interpreted according to what their text was originally understood to mean. Liberals and Democrats tend to argue that the framers defined rights in general terms to permit future evolution in their scope and meaning by applying them in new ways in response to new societal understandings and conditions.
The abortion rights ruling offered a concrete illustration: The three liberals in dissent acknowledged that no one thought there was a right to abortion in 1868, but also noted that women played no role in ratifying the 14th Amendment because they would not gain the right to vote for another half century. Locking down the meaning of freedoms from the vantage point of an antiquated society, they said, consigns women to the status of second-class citizens.
Against the backdrop of that debate, Alito denied that the decision imperilled other precedents in which the Supreme Court proclaimed modern-era rights based on an evolving understanding of individual freedoms protected by the 14th Amendment — including to contraception, sexual conduct with a member of the same sex or same-sex marriage.
He said abortion was different because it involved the destruction of foetal life, which the state had an interest in protecting.
“To ensure that our decision is not misunderstood or mischaracterised, we emphasise that our decision concerns the constitutional right to abortion and no other right,” he also wrote. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
Even the conservative justices signalled disagreement among themselves over how much stock to put in that statement, however. At one end of the spectrum, Thomas made no secret of his eagerness to press further and overturn those precedents, too.
He said he agreed with Alito’s line insofar as it meant that only abortion was specifically “at issue” in the case decided Friday. But he went on to call for the court to purge, “at the earliest opportunity,” all other cases that similarly reasoned that various unwritten rights are protected by the due process clause of the 14th Amendment.
At the other end of the spectrum, Chief Justice John Roberts agreed with the majority that a Mississippi law banning abortions after 15 weeks — with no exceptions for rape or incest, including for minors — should be upheld. But Roberts, who has long favoured narrow opinions and incremental change, declared that his five fellow conservatives had already gone too far in overturning Roe v Wade.
“The court’s opinion is thoughtful and thorough, but those virtues cannot compensate for the fact that its dramatic and consequential ruling is unnecessary to decide the case before us,” he wrote.
For his part, Kavanaugh echoed and emphasised Alito’s claim that the court’s decision to overrule precedents about abortion does not amount to overruling precedents about contraception and interracial or same-sex marriage, “and does not threaten or cast doubt on those precedents.”
The dissenting justices expressed disbelief at Alito’s and Kavanaugh’s attempts to distinguish abortion from precedents about matters such as contraception and same-sex intimacy and marriage. The bottom line, they wrote, was that the reasoning about the 14th Amendment and 1868 was the same for that entire constellation of rulings.
“One of two things must be true,” they wrote. “Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid-19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.”