When Justice Samuel Alito destroyed Roe v. Wade a year ago, he congratulated himself that all the so-called political turmoil, inflamed debate and damaging consequences of the 1973 decision would end.
Overturning the federal right to abortion and turning abortion rights into a political football to be kicked around the halls of state legislatures has certainly defused that powder keg — not!
We’re talking about one of the most intimate, personal and life-altering decisions an individual can make: whether or not to continue a pregnancy or become a parent with its life-long consequences. We’re talking about a nine-month condition, in this case unwanted, with serious risks, even of death, and whose conclusion carries no guarantees of successful outcome, to be followed by decades of caretaking, education, housing and other immense financial and domestic burdens.
Sure — why not leave that decision up to your possibly gerrymandered and religiously fanatical legislator to decide? What could possibly go wrong?
“Roe was egregiously wrong from the start,” Alito wrote in the Dobbs decision. “Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed [sic] debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
At the first anniversary of the cavalier, mean-spirited Dobbs ruling, let’s look at the damaging consequences, inflamed debate and deepened division that have transpired since.
State legislators are engaged in figurative hand-to-hand combat. There’s acrimony, filibusters, tears and prayer rallies in our state capitols. There are countless marches and pickets — including at the homes of some Supreme Court justices. Frustratingly, the focus stays on politics, while the plight of women and other pregnant persons whose rights and lives have been permanently damaged or endangered by the Dobbs decision fades from view.
It’s an understatement to call us a nation in crisis. In Texas, an anti-abortionist shot and killed his girlfriend after learning she’d left the state to have an abortion. A Nebraska mother and daughter were charged criminally with abortion. An Indiana OB-GYN who performed a mercy abortion on a 10-year-old rape victim from Ohio last summer was recently fined and reprimanded. A number of women, most with wanted pregnancies that went tragically wrong, are suing Texas for endangering their lives. It’s estimated there were some 24,000 fewer legal abortions from July 2022 to March 2023 compared to the period before Dobbs. Clinics across the state lines of banned states have been swamped, delaying abortion care for in-state women. Meanwhile, some legislators and groups are agitating to charge women who have abortions with homicide or even apply the death penalty. Bans will never be enough for these zealots. It’s chaos.
Sixteen states have banned abortions, including almost the entire South. Only three of these states provide any exception for rape or incest. Several states have various other bans. Don’t forget about the six states where courts have temporarily halted bans. The good news is that 20 of the 25 states where abortion is legal have enacted at least some new protections since Dobbs.
As states fall to anti-abortion politics, the “Antis” will be able to dedicate their billions of dollars in dark money to fight abortion in a smaller pool of states and races. Only those states that enshrine abortion rights in the Constitution presumably will be safe, at least for a time. Right now that’s only three.
These legislative and lower court battles will rage forever if abortion laws are left to state legislators. But . . . hey, aren’t you happy that the Supreme Court is above the fray?
Justice Brett Kavanaugh, in his self-congratulatory concurrence, acted as though the court majority was somehow doing a noble act in giving states the right to make this personal decision for individuals: “Instead, those difficult moral and policy questions will be decided, as the Constitution dictates, by the people and their elected representatives through the constitutional processes of democratic self-government.”
Alito patronizingly assured women that we still have the vote (the only right that can’t be taken away from us because it’s in the Constitution) and can use it, to wit: “Our decision returns the issue of abortion to those legislative bodies, and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office. Women are not without electoral or political power.”
It’s just our tough luck that we’re grossly underrepresented in Congress, state legislatures and party politics. (And even tougher luck that we’re underrepresented on the Supreme Court.)
But overrepresented on that court, unfortunately, are Roman Catholics. They make up six out of nine justices, only one of whom is pro-choice — Justice Sonia Sotomayor. She represents the more typical liberal Roman Catholic layperson of today, as opposed to the ideology of the U.S. Conference of Catholic Bishops that the five extremists endorse (plus Catholic-schooled Justice Neil Gorsuch).
The Dobbs decision they engineered turned back the clock to the 19th century, under the ridiculous premise that because the laws didn’t protect abortion rights at the time the 14th Amendment was adopted in 1868, 21st century American women must be governed by Civil War–era readings of the law. We must revert to the horse-and-buggy age before women even had the vote, could attend most colleges and universities, enter professions, serve on juries, own property or have custody of our own children, among other rights typically denied women at the time the 14th Amendment was adopted.
This argument is beyond outlandish. Alito’s decision even invoked the 17th-century views on abortion of Sir Matthew Hale — who notoriously sentenced two women to death as witches — and who, Alito notes approvingly, thought “pre-quickening abortion could rise to the level of a homicide.”
You can’t make this stuff up. And it’s the stuff of nightmares.
Here’s the kicker to the Dobbs ruling, with its high-minded insistence that the Supreme Court should not make the decisions on abortion rights (neither should women/pregnant persons):
What will the extremist Supreme Court do with the mifepristone case?
This lawsuit by religious extremists, tailor-made for a Christian nationalist district court judge and the most conservative appeals court in the country, is wending its way back to the Supreme Court, which will be asked to decide whether said Christian nationalist judge can ban a medication abortion pill nationwide. For now, the high court has put on hold Judge Matthew Kacmaryk’s overreaching decree. But when this case again reaches SCOTUS, will Alito and the ultraextremist Catholic majority be able to restrain themselves from upholding Kacmaryk’s opinion — thereby re-injecting the high court into what it claims should be left to states? With more than half of all abortions in the United States today done via medication, so much hinges on this case.
Justice Alito: It is time to heed the Constitution and leave the decision about abortion not to you, the Catholic Church or elected officials, but to those people facing unwanted pregnancies.