Roe Was Flawed. Dobbs Is Worse.
Yes, Roe was the product of an activist Court. But so was overturning it.
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I’m a conservative (or what used to be called a conservative) who always thought Roe v. Wade was the product of judicial activism. But overturning it is even worse.
But first, here’s more from The Atlantic.
As of last Friday, American women lost the constitutional right to choose an abortion, ending a protection that’s nearly 50 years old.
Like most Americans, I think abortion must remain legal—but with restrictions. I am conflicted about abortion because of things that happened in my own family, but when it comes to the law, let’s stipulate that over the half century that Roe kept abortion legal, even some of its defenders thought it might be a shaky decision—the product of judicial activism. They were right: Roe was the product of an activist Court. But then, so was Dobbs v. Jackson Women’s Health Organization.
How, conservatives fume, can anyone argue that dumping Roe and “throwing it back to the states” is “activism”?
Here’s the answer: Years of political change matter. Decades ago, abortion became accepted as a right by a broad majority of the country. Justice Samuel Alito and the other five conservatives on the Supreme Court were not handing back abortion to the states as if it were some open question for a debate; they knew exactly what was going to happen in states with “trigger” laws the minute they ruled. Despite their legal rationale, these justices were taking sides in a culture war on behalf of a minority of Americans with whom at least some of them happen to agree.
Alito, in particular, had been strategizing for years about this single issue: As The New York Times reported, in 1985, before he was on the Court, Alito took “umbrage” at a judge’s comments that “forcing women to listen to details about fetal development before their abortions” would cause them emotional distress. “Good, [Alito] wrote: Such results ‘are part of the responsibility of moral choice.’” (As my Atlantic colleague Adam Serwer has written, “The cruelty is the point.”)
But somehow, in 2022, we’re supposed to believe that now-Justice Alito approached Dobbs with a dispassionate constitutional eye.
Anti-abortion conservatives huff that the Court has regularly overturned hideous decisions, such as Dred Scott, Plessy, or Korematsu (which wasn’t really overruled but finally disavowed in a 2018 ruling). Roe, they argue, is just another bad case that was due for reversal.
This is reasoning in a vacuum, as if nothing happened over the course of 50 years. Chief Justice John Roberts himself once said that Korematsu was wrong when decided, and “has been overruled in the court of history.” True indeed. And Roe, even if poorly decided, has been affirmed in that same court; again, a majority of Americans believe in a right to abortion in all or some cases, and have for a half century. Even now, if the goal was to remedy a Roe overreach, the majority could have found a way to do so while leaving abortion rights intact. This was apparently Roberts’s position, but he was brushed aside by the five other conservative justices.
It’s true that abortion is not in the Constitution. A lot of things aren’t in the Constitution, including the “right to be left alone,” but that hasn’t stopped Americans from recognizing that such rights exist. More to the point, the historical incoherence of Alito’s opinion—and Clarence Thomas’s ominous warning that the Court should review and potentially unravel other rights—suggests that no one in the majority really cares all that much about whether Roe was rightly decided. They care about abortion and other liberal changes in American life (such as gay marriage, apparently), and they may well intend to roll them all back.
In 1973, liberal justices decided that abortion was a right, and so ruled. In 2022, conservative justices decided that abortion not only isn’t a right, but that it shouldn’t be.
But only one of these is activism?
Related:
Today’s News
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A Russian missile struck a Ukrainian shopping center with more than 1,000 people inside, killing at least 13 and wounding dozens more.
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The Supreme Court ruled that a former high-school football coach who regularly offered prayers after games had a constitutional right to do so.
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The WNBA star Brittney Griner’s trial is set to start this Friday in Moscow, more than four months after she was first detained in the country for possession of cannabis vape cartridges.
Dispatches
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Work in Progress: Derek Thompson explains why air travel is a disaster right now.
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The Third Rail: David French argues that the pro-life movement’s work is just beginning.
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Humans Being: Only Murders in the Building, which returns tomorrow for its second season, has all the comforts of the mystery genre, but also a critical self-awareness of its tropes, Jordan Calhoun writes.
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Unsettled Territory: The return of Patrice Lumumba’s tooth reminds us that today’s ceremonial gestures do not remedy yesterday’s devastation, Imani Perry argues.
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Famous People: Lizzie Plaugic and Kaitlyn Tiffany summer in the Hamptons—sort of.
Evening Read
I Witnessed One of the Ocean’s Rarest Phenomena
By Sam Keck Scott (Originally published in Hakai Magazine)
The sky was moonless and overcast, leaving no stars to steer by. Alone at the helm in the middle of the Arabian Sea, somewhere between Oman and India, I could see nothing in the ink-black night save for our ship’s dimly lit compass rolling on its gimbal mount as we heaved and swayed through three-meter seas. But half an hour into my shift, the sails above me began to glow, as if the moon had risen.
More From The Atlantic
Culture Break
Read. Spend a few minutes with Tiana Clark’s poem “Considering Roe v. Wade, Letters to the Black Body.”
Two recent books, Voice of the Fish and Undrowned, offer respite for when you feel at odds with being human.
Watch. Elvis, which just opened in theaters, is a mess. That’s exactly how it should be.
Or start Abbott Elementary (available on ABC and Hulu), a pick from our list of highly bingeable TV comedies.
Listen. This week on How to Start Over, our hosts explore the barriers to making friends as an adult.
I was a young guy in the ’80s and I loved the original Top Gun, even though I knew it was just a Navy recruiting ad with a paper-thin plot. But if there was ever a time for the pure escapism of a popcorn movie, it’s now. I recently saw Top Gun: Maverick, and I enjoyed it, despite the military and international-relations expert parts of my brain screaming at me that the entire scenario was ludicrous. (I taught at the Naval War College for 25 years; I can’t just turn that off.) If you’ve already seen the movie, the most intriguing explanation of the absurd plot is in this essay—but it has major spoilers, so be careful!
— Tom
Want to discuss more? Join Adrienne LaFrance on Wednesday, June 29, at 12:30 p.m. ET for a conversation about life after Roe v. Wade with the legal historian Mary Ziegler and the constitutional lawyer David French. Register here.
Katherine Hu contributed to this newsletter.