Justices Unswayed by My Body, My Choice

         Thousands of soldiers, sailors, marines, and airmen are defying orders from their commander in chief to get vaccinated against the Covid-19 virus, evidence that the anti-vaxxers’ slogan of “my body, my choice” has insinuated itself into the ranks of the U.S. military. The resistance to vaccination threatens two qualities essential in the military: discipline and unit cohesion.

My body, my choice appeared to have only weak support, however, at the Supreme Court last week [Dec. 1] in the showdown arguments on abortion rights for America’s women. Conservative justices appeared to be open to overturning one important element of the 48-year-old landmark abortion rights decision in Roe v. Wade (1973), provisions protecting a woman’s right to terminate an unwanted pregnancy until late in her pregnancy.

The state of Mississippi posed the issue for the justices in 2018 by enacting a law that prohibits abortions after the fifteenth week of pregnancy in direct contradiction of the rule in the post-Roe decision, Planned Parenthood v. Casey (1992), that a state cannot ban abortions before the fetus can survive outside the womb, roughly after twenty-two or twenty-four weeks.

The law, struck down by two lower federal courts, amounted to a direct attack on the Supreme Court’s legal authority. Once the justices agreed to hear the state’s effort to reinstate the law, the state directly asked the Court to overrule Roe v. Wade, not merely to revise it. With Justice Ruth Bader Ginsburg’s death and the appointment of an anti-abortion judge in her place, anti-abortion forces sensed victory within their grasp.

Justice Amy Coney Barrett’s confirmation completed a trifecta for President Donald J. Trump’s promise to appoint justices who would vote to overturn Roe. All three of Trump’s justices – Neil Gorsuch, Brett Kavanaugh, and Barrett – won confirmation in a Republican-controlled Senate by historically narrow margins only after the Republican leader, Kentucky’s Mitch McConnell, engineered a rules change to allow Supreme Court nominations to be brought to the floor with fewer than sixty votes.

The oral arguments in Dobbs v. Jackson Woimen’s Health Organization left little doubt that the fortified conservative majority would uphold Mississippi’s law even at the cost of damaging a well-established precedent that two generations of women have relied on in planning their personal and professional lives. The outnumbered liberal justices – Breyer, Sotomayor, and Kagan – appealed in vain to the time-honored legal doctrine of respecting precedent, known in Latin as stare decisis (“let the decision stand”).

Kavanaugh answered by listing some of the Court’s now-honored decisions that overturned prior discredited decisions: Brown v. Board of Education, for example, with its overruling of Plessy’s blessing for racial segregation. Like Brown, all of the other overrulings that Kavanaugh listed enhanced liberty and equality under the law: one person, one vote; Gideon’s right to counsel for indigent defendants; marriage equality for same-sex couples; and others.

By contrast, overruling Roe v. Wade will amount to a major setback for women’s liberty and equality under the law. As one commenter put it on Twitter, Roe is Brown, not Plessy. And it is worth noting here that Roe was a 7-2 decision, joined by five Republican-appointed justices: three of Nixon’s justices, Burger, Blackmun, and Powell; and two of Eisenhower’s, Stewart and Brennan, the Court’s only Catholic justice at the time. The others in the majority included Douglas and Thurgood Marshall.

In his telling, Kavanaugh suggested that our liberty-loving Constitution is “neutral” on abortion: neither pro-life nor pro-choice. Instead, it allows the government to force a woman to carry an unwanted pregnancy to term despite the medical issues that any pregnancy entails and the risk of serious complications and even death in childbirth.

From the other end of the bench, Barrett was similarly cavalier about forcing a woman to carry a pregnancy to term. In her telling, the woman forced to give birth to an unwanted child can simply give it up for adoption, as easily as returning unwanted merchandise to a department store.

In the center seat, Chief Justice John G. Roberts Jr. was also somewhat cavalier in suggesting that fifteen weeks is ample time for a woman to come to a decision and arrange, schedule, and pay for the procedure. In fact, most of the abortions in Mississippi are performed by the fifteenth week of pregnancy. Roberts appeared to be looking for a compromise that would hold Mississippi’s law to survive a benefit-burden balancing test without flatly overruling Roe.

For now, Roe v. Wade survives only on borrowed time, the time it takes for the justices to draft, circulate, and sign off on opinions between now and the end of June. In the meantime, state legislatures have a green light to pass new abortion restrictions without worrying about Roe.

Still pending at the Court is the review of Texas’s more stringent law, known as S.B. 8, that prohibits abortions after a heartbeat is detected, roughly the sixth week of pregnancy. Texas designed the law to allow enforcement by private citizens rather than by state officials so as to avoid judicial review. The Court heard arguments in two parallel cases on Nov. 1 and has left the Texas law in place while drafting opinions to deal with the complex procedural issue presented.

             As they deliberate, the justices ought to seriously consider Sotomayor’s plaintive warning during oral arguments that the Court might not survive “the stench created by the public perception that reading the Constitution is just a political act.”