Roe reversal won't end national debate: States must allow access to abortion

For a half-century, the Supreme Court gave constitutional protection to pre-viability abortions. Every woman, in every state, had what the court deemed a "fundamental right" to make a very personal and private decision to terminate a pregnancy.

Since the Roe v. Wade decision in 1972, women and their families have relied on that precedent, reaffirmed 30 years later in Casey v. Planned Parenthood. That's when five justices in the majority, all appointed by Republican presidents, recognized Roe as a superprecedent because women depended on this right, grounded in the Constitution's individual liberty protections, to shape the trajectories of their lives.

The court's decision Friday in Dobbs v. Mississippi will prove to be a terrible mistake. The Constitution should protect the right to an abortion.

Overturning Roe is not a solution to what has long been our national dilemma. Abortion was common and uncontroversial until 1868 when states started criminalizing the procedure. It remained illegal until the Roe ruling, which was uncontentious at the time and came amid efforts to loosen restrictions in many states. But soon the backlash began. And now another one starts.

As a nation, we continue to struggle with this moral knot, this clash of deeply held personal convictions: How do we reconcile the belief of some that life begins at conception with the promise of individual liberty?

Such beliefs have informed and should continue to inform our public morality but they can't be imposed on a secular society. Our nation was founded on the idea of freedom from organized religion. A just society, a democratic society, must find a way to protect life and the right of a woman to choose her own destiny and not be forced to bear a child.

A RIGHT WITHDRAWN

The court has struggled for decades to find a consistent approach to regulating abortion in the face of an organized, and now effective campaign to overturn Roe. With three justices appointed by Donald Trump and a pipeline of cases challenging the legitimacy of Roe and Casey, there finally was a majority to do so in the Dobbs case. This seems to be the first time the Supreme Court has withdrawn a constitutional right.

In doing so, the credibility of the court as being beyond politics is severely undermined, and the reputations of justices who told the Senate at their confirmation hearings that Roe and Casey were established precedents are damaged.

To keep stability in our society, legal precedents should only be overturned for a compelling reason. In the rare instances the court has done so, it was to recognize it had made a mistake in denying constitutional protections as it struck down state laws that kept racial segregation in place, banned interracial marriage, prohibited consensual homosexual sex, and allowed the use of evidence in a criminal case despite being obtained in an illegal search.

"The Court’s decision to overrule Roe and Casey is a serious jolt to the legal system — regardless of how you view those cases. A narrower decision rejecting the misguided viability line would be markedly less unsettling, and nothing more is needed to decide this case," wrote Chief Justice John Roberts in a concurring opinion that would have upheld Mississippi's ban on abortions after 15 weeks but still preserved constitutional protections for this personal and private choice by women.

Disturbingly, this court failed to articulate a compelling reason to withdraw a right it had established. Instead, the majority opinion says each state is best suited to determine whether abortion should remain legal and, if so, under what restrictions. Where she lives and how much money and information she can get will now determine whether a woman will be forced to give birth to an unwanted child.

The court's reasoning is terribly flawed. It's an illusion that states will do a better job of defining the government's role in regulating pregnancy. In reactions to the reversal we can already see the contours of the trouble ahead. The Dobbs ruling will unleash even more political turmoil and legal upheaval as each state's legislature determines how much autonomy a woman has over her body.

Some will return to the days when a woman and her doctor faced criminal charges for ending a pregnancy. Some will not allow an exception for rape and incest. States will clash. Can one state bring criminal charges against a medical provider in another state who provides an abortion to a resident from their state? There will be litigation between states and the federal government. Can the Food and Drug Administration override state bans on medical abortion, increasingly becoming a widely accepted method to end early pregnancies? Novel legal strategies are already being devised by advocates on both sides.

OTHER TARGETS

The court not only has changed the battlefields for our culture wars, it may revisit other seemingly settled matters while establishing new prohibitions. While Justice Samuel Alito says Dobbs is just about abortion, the underpinning of his legal argument could jeopardize the use of contraceptives and same-sex marriage, an outcome Justice Clarence Thomas extolled in a concurring opinion. It may also clear the way for states to prohibit in vitro fertilization, or block the ability of someone to refuse end-of-life care.

Popular opinion in the United States hasn't shifted much in the five decades since Roe. While scientific and medical advances have pushed the point ever earlier when life can be supported outside the womb, the majority supports abortion prior to viability.

The same problems that were a conundrum in Roe will exist tomorrow. Who should have the power to make those difficult choices? The mother, the father, the doctor, or the government? Abortion was already becoming difficult to obtain in more than half the states as clinics closed, yet the number of abortions increased last year. Women have always found ways to get abortions.

To resolve this clash of rights, our nation will have to find a tolerable and moral common ground. Getting there will require a level of respect missing in our civic discourse. Principled views on abortion come from centuries of religious tradition and customs, ones that are challenged at times by advances in science and technology. We must try to understand the sincere arguments of those who hold opposing views. It's the only way to find compromise that appropriately balances a woman's autonomy and the recognition of the sanctity of life.