Abortion Conflicts Go On
Terry H. Schwadron
June 25, 2022
We may never get over the emotions roused by abortion.
But it was clear even minutes after the Supreme Court decided 6–3 to toss 50 years of legal abortion as a right that, as a nation, we’re not done with arguing about the moral issues, the political fallout or even the extended legal aspects of the abortion issue. With half the states immediately or nearly immediately shuttering abortion clinics, we already are seeing signs of more turmoil.
Rather than settle an issue, the Supreme Court’s conservative majority has merely piqued the country’s moral outrage on all sides, and set us up for a ton more debate and divisiveness. Chief Justice John G. Roberts Jr. voted with the majority but said he would have taken “a more measured course,” stopping short of overruling Roe outright.
Forget about the early leaks of this split decision: The obvious upheavals in the streets and in our legislative halls on when the leaked version went public did not change much at all in the final decision.
This is a Supreme Court cocksure of itself, and deaf to the world around it. While there were immediate answers in halting any perceived federal right to abortion, there was also the launch of a thousand ways to rebel.
So, in the absence of any court-backed Constitutional right to abortion on the one side, we can fully anticipate congressional attempts to capture a national ban in legislation. At the same time, we can expect the opposite, a congressional campaign to enshrine exactly that right to abortion reflected in Roe v. Wade.
Unsettling and Unsettled
The decision to leave abortion decisions to the states means there are a ton of gray areas left behind, from handling of justice cases arising from incest and rape to actions that will impinge on women’s health to the fate of pregnancies in which emergency life decisions will still require intervention. In at least one state, abortion is being criminalized.
And to ensure legal chaos, Justice Clarence Thomas opined in his concurrent argument that the perceived rights to contraceptives, same-sex marriage and relationships are fair game for the same court majority that has just rejected the underlying principles to legal abortion.
Thomas said that “any substantive due process decision is ‘demonstrably erroneous,’” quoting a 2020 Supreme Court decision. “We have a duty to ‘correct the error’ established in those precedents,” he added.
By contrast, Justice Samuel Alito, author of the majority opinion, specified that the decision was narrowly focused on a federal right to abortion, not to other rights reasoned in an understanding of privacy rights.
Thirteen states will outlaw abortion within 30 days with “trigger bans” designed to take effect as soon as Roe was overturned. These laws make an exception for cases where the mother’s life is in danger, but most do not include exceptions for rape or incest.
Some states already are moving next against distribution of abortion-aid pills by mail. Other state legislatures are talking about trying to limit the ability of women to travel to abortion-approving states for treatment. Republican lawmaker in Missouri proposed legislation earlier this year that would allow private citizens to sue anyone who helps a Missouri resident access abortion outside the state, using the novel legal strategy behind the Texas abortion ban, which empowers private citizens to enforce the law through civil litigation, The Washington Post noted.
Calls for Action
“This fall, Roe is on the ballot,” intoned Joe Biden, along with the other rights based on the same Constitutional understanding. Biden openly called for election of enough members of Congress who would vote to codify the provisions of Roe to federal law.
Biden vowed to protect interstate travel for abortions and for distribution of mailed drugs approved by the Federal Drug Administration.
Biden joined with various governors and mayors in calling for protests that are free of violence. Biden made clear that he believed the court majority was not only wrong, but unrepresentative of popular opinion.
Senators who felt hoodwinked by the various remarks by Justices Amy Barrett Coney, Neil Gorsuch and Brett Kavanaugh about Roe as settled law during their confirmation hearings to join this conservative majority were especially vocal.
In New York, Gov. Kathy Hochel declared the state “a safe harbor” for abortion, noting that anticipating the decision, the state has set up a $35 million fund for reproductive health clinics to help them with an expected surge of out-of-state patients. The legislature also has passed bills meant to protect medical providers from being brought up on charges in other states or otherwise penalized for providing abortions.
We already have seen groups file lawsuits claiming abridgment of freedom of religions that do not accept that life begins at conception, as an example of what is to come.
If the court majority thought that it was bringing finality to differences over abortion among states, it was mistaken. If the court thought that this was a resolution of legal issues in principle only, it likely was mistaken. If the court believed it represents consensus American values, it certainly was wrong.
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