By The Herald Editorial Board
There is no getting past the realization that — for the first time in American history — the U.S. Supreme Court has subtracted from the existing rights of citizens, rather than strengthened them.
Justice Samuel Alito’s majority opinion in Dobbs v. Jackson Women’s Health, didn’t merely find for the state of Mississippi and uphold its ban on most abortions after 15 weeks; instead a five-member majority — emboldened for the first time by the addition of three conservative justices nominated by President Donald Trump — used that dominance to utterly strike down nearly 50 years of precedent granted by the court’s decision in Roe v. Wade.
The decision, because it returns the issue to states and a patchwork of laws, means abortion will remain available for those with the finances and ability to travel to other states, including Washington state, where abortion remains legal. But for many others, access to abortion — and related health care — will be far more limited than it is today, with that access restricted; with the miles necessary to travel increasing as “trigger laws” become effective in more states.
The result will be an escalation in financial inequalities for American women and families; forcing more into poverty and even graver consequences because of poor access to health care.
As it it did a day before in its decision regarding firearms regulation, the Supreme Court’s majority relies on a cherry-picked history that allows it to defend its decision as high-minded “originalism,” purportedly heeding only the original text of the Constitution and the “history and traditions” of the laws of long-past eras. But Alito, in his opinion, according to numerous legal scholars, ignores the hands-off approach that laws and public opinion took regarding abortion prior to that of 19th-century lawmakers who sought to use prohibitions against abortion as a way to lock women into there roles in the home and keep them out of politics and business.
Patricia Cline Cohen, a emerita professor of history at University of California, Santa Barbara noted last week in a Washington Post guest commentary: “Before states began criminalizing abortion in the 19th century, and even after, respectable doctors and midwives performed abortions, with the practice usually only visible to the public when a patient died. Juries were tolerant, penalties were low and successful patients — whether hiding shame or spacing pregnancies — availed themselves of these procedures.”
Where the Supreme Court in 1973 found that the provisions of the 14th Amendment — ratified in 1868 — of due process and privacy protected a woman’s right to choose whether to continue or end a pregnancy, Alito and four fellow justices could find no express provision in the Constitution or its amendments for abortion; or rather, chose not to see one in the precedent that was set by a 7-2 majority nearly 50 years previous.
A judge selectively using the historical and legal record can easily disguise judicial activism as constraint, writes Reva Siegel, a professor at Yale Law School, in a separate Post commentary.
“Consider what else was part of this period’s ‘history and traditions’: The law did not protect a wife’s right to control property, earnings, or sex in marriage; this was a period when the Supreme Court declared states could deny women the right to practice law and states could deny women the right to vote,” Siegel writes.
What in the law and public opinion — whether in the 1800s or before — affords it more weight in the majority’s mind than the precedent and opinion of the last 50 years?
As troubling as the loss of the federal right to abortion access is, Justice Clarence Thomas, in his concurring opinion, expressed his willingness to go even further in his notions of originalism, suggesting the removal of constitutional protections won during the last 50 years of Supreme Court decisions, including:
The right for couples to use contraception, set out in 1965’s Griswold v. Connecticut;
The court’s 2003 ruling in Lawrence v. Texas that prevents states from criminalizing the private conduct of gays and lesbians; and
The court’s 2015 decision in Obergerfell v. Hodges, allowing gay and lesbian couples to marry.
“Substantive due process … has harmed our country in many ways,” Thomas wrote. “Accordingly, we should eliminate it from our jurisprudence at the earliest opportunity.”
Thomas may be alone in his desire to next go after those three cases; Justice Samuel Alito, in both the leaked draft and the final majority opinion specifically stated that nothing in the Dobbs decision “should be understood to cast doubt on precedents that do no concern abortion.”
But among members of the Dobbs majority are the three justices nominated by Trump who during confirmation hearings and in private conversations with senators made assurances regarding their respect for past precedents, including that in Roe v. Wade. Roe’s reversal after nearly 50 years, however, removes confidence from the explicit statements by Alito and Justice Brett Kavanaugh that those precedents are not threatened.
Regardless of the court majority’s reasoning, this much is clear: The issue of abortion is back before the voters. Alito couched the Dobbs decision as having removed the issue of abortion from the court and placed it where it belonged, the “people’s representatives” in Congress and state legislatures. Voters should now take that responsibility seriously.
Voters in Washington state will help set the course for these rights and other issues in several races in the Aug. 3 primary and the Nov. 8 general election; in Washington state for a U.S. Senate seat and 10 seats in the House of Representative, as well as seats in the state Senate and House.
That Washington state voters — with Referendum 20 — approved access to abortion three years before Roe’s federal guarantee, offers no assurance that the right will not be threatened in the future, depending on both chambers’ political makeup.
Candidates for Congress and Legislature should be questioned regarding their positions on assuring access to abortion, strengthening those rights and protecting the safety and interests of those who seek abortion and assist others with that medical service.
As for those who do not support a right to abortion, they too should press candidates on long-professed but rarely delivered support for assistance to the families who will be required to bring these pregnancies to term, including greater financial support for the health of women and children, the expansion of Medicare now offered by the federal government to states and a resumption of the expanded Child Tax Credit that expired at the end of last year.
There are other issues to consider when choosing among candidates, but responses regarding access to reproductive health and gender equality should rank high as voters mark their ballots in the coming months.