Reviews | A requiem for the Supreme Court after Roe’s death


For the court to decide to tackle Roe v. Wade, in other words, was the opposite of judicial activism. Friday’s ruling, meanwhile, was the epitome of judicial activism: A federal appeals court had blocked a Mississippi law on the grounds that banning abortion after 15 weeks of pregnancy was blatantly inconsistent with Roe and Casey. (Those rulings protected the right to abortion until fetal viability, or about 24 weeks.) The state originally asked judges to decide whether a ban on abortion before viability was still unconstitutional. Despite Chief Justice Roberts’ objection, the majority opinion went further, eliminating the right to abortion in its entirety.

In agreement, the chief justice underlined how aggressive the majority opinion was, writing: but also expressly reaffirmed the application of the doctrine of stare decisis. He added that “his dramatic and consequential decision is not necessary to decide the case before us.”

But Judge Alito declined that call for restraint. The Chief Justice’s ‘search for a middle way’ would only delay the day when we would be forced to face the issue we are now deciding,” Justice Alito wrote. “The turmoil caused by Roe and Casey would continue. Far better – for this court and the country – to deal with the real problem now. »

There will certainly be unrest now, as the country’s highways fill with women desperate to regain control of their lives and running out of time, perhaps being followed by vigilantes across state lines. But the only turmoil caused by Roe and Casey was due to the refusal of activists, politicians and Republican-appointed judges to accept the validity of precedents. Judge Alito’s reference to “turbulence” reminded me of nothing more than Donald Trump’s invocation of “carnage” in his inaugural speech. There was no carnage then, but there was carnage to come.

Forty-nine years is a long time, but professional lives, including mine, are long too. I was a newly appointed Times reporter in 1969 when I received an assignment to write about the growing abortion controversy. I dove into the matter, interviewing and learning from lawyers on both sides of the debate. On January 25, 1970, the New York Times Magazine published my article under the title “Constitutional Question: Is There a Right to Abortion?” It was, I believe, the first article in a general interest publication to review the emerging constitutional arguments, and it was fairly widely reprinted. When I finished reading Friday’s ruling in preparation for writing this essay, I realized that I would have chronicled this profound issue through its entire arc, a perspective that I never could have. to anticipate.

Except, of course, that the story is not over. Although Judge Brett Kavanaugh proclaimed with obvious relief in his concurring opinion that the court was now stepping back from the board and “will no longer decide how to weigh the interests of the pregnant woman and the interests of protecting fetal life throughout of pregnancy”, i.e. probably not the case. These pesky women will continue to have problems: What about pregnancy-related medical issues aside from impending death? Grated? Incest? Fetuses condemned to die in the womb or shortly after birth? Will young teenagers be forced to have children? Will women who receive a prenatal diagnosis of severe fetal abnormality be forced to give birth to a child they cannot adequately care for and in which the state has little postnatal interest? What happens when states start prosecuting not only doctors but also women?

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