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Roe v. Wade, the 1973 Supreme Court decision, which found that women have a constitutional right to an abortion, was a balancing act. Like more compromises, it was, for lack of a better phrase, a messy decision. In it, the majority of justices recognized the importance of protecting both the rights of women and “potential life.” Accomplishing both was no easy task, but the court’s ruling was upheld in subsequent cases and its precedent stood for decades, until last week.
As the all nine of the current Supreme Court justices made clear in their rulings in last week’s opinions on the right to an abortion, ending a pregnancy is controversial and morally charged. But that’s where the commonality ended. The six justices who voted to strip away this right at the federal level repeatedly bashed – mocked even – the nearly half decade old Roe v. Wade decision, never acknowledging its goal of striking a difficult balance.
Instead, last week’s majority opinion overturning Roe jettisoned the balance previously set by the Supreme Court (and reaffirmed by the 1991 Planned Parenthood v. Casey decision, which the majority also overturned last week) and tossed the rights of women aside, to be decided, the majority of justices blithely opined, by the states. The majority wrapped their decision in language about history and precision, and spent pages writing about fetal viability with barely an acknowledgement of the impacts of pregnancy and abortion on women.
Perhaps, as Chief Justice John Roberts, wrote in a cowardly concurring opinion, the court in Roe didn’t get the balance quite right. But, that, as Roberts wrote, was not a reason to overturn Roe and discard that compromise entirely. Yet, he voted to do so anyway. Instead, the court should have adjusted the balance, which through Roe was based on a determination of when a fetus was viable, meaning it could survive on its own, outside the mother’s womb.
The three liberal justices who dissented focused more on the rights of women, and how state-by-state abortion restrictions will harm women, especially those who are poor. As the dissenters noted, some women will die because of this decision, others will lose their financial autonomy, some will suffer psychologically.
Here’s a simple, but crude measure of this dichotomy. The majority opinion, which is 79 pages long, used the word “woman” 56 times, often in footnotes and citations to other cases. In fact, the word “viability” appeared more frequently in the majority decision than did “woman.” The dissenting opinion, 60 pages long, used “woman” 76 times.
In other words, the dissenters focused on women and their rights, and why they matter, ending with this sad lament: “With sorrow — for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection —we dissent.”
The majority, for the most part, focused on a tortured legal analysis of fetal viability and state’s rights to restrict abortion. At one point, for example, the majority decision asked: “If, as Roe held, a State’s interest in protecting prenatal life is compelling ‘after viability,’ … why isn’t that interest ‘equally compelling before viability’?” Likely because the state doesn’t have a compelling interest in something that is not yet viable.
It is as if the needs and rights of women were secondary, or even irrelevant to the six conservative justices who stripped at least one of those rights away, returning decisions about limits on abortion to the states. As a result, a woman’s right to bodily autonomy is determined by where she lives, and also by her socioeconomic status and other factors. So much for equality under the law, which ironically is engraved in stone above the entrance to the Supreme Court.
