Forty-nine years after legalising abortion, the US Supreme Court’s reversal of Roe v Wade (and the related 1992 Planned Parenthood v Casey) has deeply divided the US and profoundly set back women’s rights. Today – polls show – more than 60 per of Americans believe abortion should be legal in all or most circumstances, and one-in-four American women will terminate a pregnancy during her lifetime. Yet the decision will lead to all but total bans in about half of the 50 states.
Importantly, the court did not decide that abortion is intrinsically wrong, but that the US Constitution’s due process provision was wrongly interpreted to imply the existence of an unenumerated right to abortion. The constitution is silent on the issue. It cannot be used to require, or prohibit, abortion facilities – that is a matter for states individually. “We now … return that authority to the people and their elected representatives,” the majority opinion by Justice Samuel Alito concludes.
The majority sees the function of the court in constitutional interpretation as discerning the original drafters’ intentions, whether explicit or not. The doctrine of “originalism” does not conceive of the constitution as living, evolving, responsive to a changing society or changing attitudes. This decision by a profoundly political and reactionary court, three members of whose majority – appointed for life – are Trump nominees, is both an assault on women’s rights but also on the whole recent jurisprudence of the court.
Its radical majority also turned its back on stare decisis, the general principle that settled precedent should not be overturned, and declined to accept Chief Justice John Roberts’s plea for judicial restraint, to limit themselves to the strict requirements of the case before them.
The three dissenting liberals warn in their minority opinion that “no one should be confident that this majority is done with its work”. Of the ruling’s looseness, they warn: “The majority does not say – which is itself ominous – whether a state may prevent a woman from obtaining an abortion when she and her doctor have determined it is a needed medical treatment”.
In his opinion “concurring” with the majority, Justice Clarence Thomas makes clear that this is just the beginning of the conservative counter-revolution. He calls 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. He cites rulings liberalising access to contraception, legalising homosexual relations and establishing the right of gay couples to marry.
There is some reassurance from Justice Brett Kavanaugh – he says states may not constitutionally bar women from travelling to another state to obtain an abortion. But the silence of the majority on such issues is indeed ominous.