If there was any doubt as to the degree of conservatism of the Roberts Court, one need only listen to the oral arguments last week in Dobbs v. Jackson Women’s Health Organization, a case that fundamentally challenges the constitutionality of Roe v. Wade.
The only Conservative judge who seemed to want to preserve some version of the right to terminate a pregnancy was Chief Justice John Roberts. The tenor of the remaining five Tory judges’ questions, however, suggested that they saw little reason to support Roe. Even if Roberts, the accomplished institutionalist, may ultimately persuade another conservative to join him in finding putative common ground to preserve the court’s legitimacy, the likely outcome would still be an opinion that only preserves Roe in name. .
In short, Roe will either be explicitly overthrown or his basic position, that states cannot ban abortions before viability, will be eviscerated, rendering Roe as dead.
At stake is the constitutionality of a Mississippi law that prohibits abortions at 15 weeks gestation, two months before viability, when a fetus can survive outside the womb. The fact that the court was prepared to consider the constitutionality of a law in direct conflict with the case law shows how much the court has changed since Roe was decided in 1973 and reaffirmed in Planned Parenthood v. Casey in 1992.
It’s disheartening enough that Roe is likely to fall, but the lack of imagination and empathy of the Conservative 6-3 majority portends a frightening future for the marginalized. At best, conservative judges are oblivious to the struggles they face. At worst, they are woefully indifferent.
Justice Kavanaugh, for example, suggested that it would be “scrupulously neutral” for the court to leave the issue of abortion to lawmakers and voters. It would be anything but neutral. It would squeeze out a fundamental right to liberty on which individuals have relied for nearly 50 years, leading to a certain or probable ban on abortion in 26 states.
Kavanaugh’s “scrupulous” neutrality blithely ignores the devastating impact this would have on those disproportionately affected by abortion restrictions – low-income people, people of color, the LGBTQ community, immigrants, people living in rural communities and people with disabilities – who would be forced to bear children in states with few safety nets for pregnant women and children. Mississippi, like 13 other states with extended restrictions on abortion, invests the least in the health and well-being of women and children. As a result, he has the highest infant mortality rate in the country and the 15th highest maternal mortality rate. To quote Judge Sotomayor, such “neutrality would allow states to say, in effect, ‘we can choose … to physically complicate your existence, to expose you to medical risk, [and] makes you poorer.
Justice was even more shocking Amy Coney BarrettAmy Coney Barrett Some good news in the battle to rebalance the courts If Democrats ‘fill the field’, will it protect a woman’s right to choose? Biden Supreme Court study group unanimously approves final reportThe suggestion the “safe haven” laws eliminate the need to maintain Roe because they allow women to escape the burden of parenthood by abandoning newborns with legal impunity. His argument ignores the fact that adoption was possible when Roe was decided. Worse yet, he sorely ignores the physical and psychological burden of enduring the riskiest stages of pregnancy, giving birth alone and abandoning a child. This the only mother in the field downplaying bodily integrity issues by casually comparing vaccines to forced pregnancy and childbirth is nothing short of shocking. Vaccines present minimal risks and offer important protections for the health of both the recipient and the community. In contrast, late pregnancy and childbirth to augment risks to the health of pregnant women, without any corresponding health benefit. In Mississippi, the risks of giving birth are 75 times more that the risks of having a pre-viability abortion, especially for women of color.
Judge Thomas revealed his own cruel contempt for the marginalized by focusing on criminalize pregnant women for drug use. In asking if the state had an interest in continuing such behavior, it did not appear concerned about the discriminatory impact. People of color are more likely to be tested and reported for drug use, and low income people and blacks and browns are discontinued at disproportionately higher rates for poor pregnancy outcomes. His indifference to these inequalities is strange while barely three years ago, he quoted the “A considerable racial disparity” abortion rates, black women having abortions at 3.5 times the rate of white women. Thomas’ clear support for fetal personality ignores the ineffectiveness and harms of incarcerating people for criminal negligence during pregnancy. These laws discourage women, especially those of color, from seeking antenatal care, thus threatening fetal and maternal well-being.
Even Chief Justice Roberts has shown a ruthless indifference to the vulnerable by declaring that the Mississippi’s 15-week ban is “not a dramatic deviation” from sustainability, as women would still have a stake. “Right choice” and the “possibility” to choose. It ignores the many barriers that make “choice” fleeting. Women may not realize that they are pregnant for 15 weeks, especially if they are young, have never been pregnant, or have irregular cycles. They can undergo a host of unexpected changes in their lives: job loss, relationship failures, family illness or medical complications. Legal barriers can hinder access to abortion before 15 weeks, which are only intensified by financial barriers, inability to take time off work and / or childcare burdens.
Roberts’ clear effort to save the tribunal from the stench of politics sidelines the impact of losing two months of decision-making and demonstrates how little he knows or cares about what it means to be poor and deprived of. his rights.
Whether Roberts can finally achieve the “compromise” he so desperately seeks remains to be seen. But two things are certain: Conservatives care little about the fate of the marginalized, and reproductive rights are on life support. Even if Roe deer is not officially canceled, removing the viability line will create a frictionless slippery slope against almost all abortion bans, dramatically increasing the inequalities in our society. We should hope that the court explicitly terminates the right to abortion, rather than deceiving the public into believing that they have an interest in keeping it alive.
Either way, the conservative majority’s indifference to inequality will not end with the battle over abortion; it will become a defining characteristic of this court.
Sonia M. Suter is Professor of Law at George Washington University and Founding Director of the Health Law Initiative. Her fellowship focuses on issues at the intersection of law, medicine and bioethics, with a particular emphasis on reproductive rights.