Ex-N.J. attorney general: The abortion ruling strips 167M Americans of their rights | Opinion

Published: Jun. 26, 2022

By John Farmer, Jr.

The U.S. Supreme Court ruling Friday, which overturns Roe v Wade, allows states to immediately adopt the most draconian prohibitions, forbidding abortions even in cases of rape, incest, or where the mother is endangered, and women will have no federal recourse at all, New Jersey's former attorney general says. 

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On Friday, for the first time in our history, more than half of Americans were stripped of a right that had been deemed fundamental for generations. Whatever else you conclude about the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, the stark reality for women is simple: their most intimate decisions about reproductive health are no longer even partially shielded from governmental intrusion by a fundamental constitutional right that has offered a modicum of protection for 50 years.

What would it take, it is fair to wonder, for the Court to be willing to strip 167.5 million Americans of a fundamental right that has been recognized since 1973? Roe v. Wade, the decision recognizing such a right, must have ranked, in the Court’s view, with the worst in American history, with Dred Scott or Plessy v. Ferguson.

Dobbs is radical stuff indeed, but one wouldn’t have expected such a reversal from the way the justices answered questions about the issue during their confirmation hearings. Justice Brett Kavanaugh came close to describing Roe as settled law, stating: “It’s not as if it’s a run-of-the-mill case that was decided once and never reconsidered, but Casey reconsidered it … and decided to reaffirm it. That makes Casey a precedent on precedent.”

Each of the other justices in the Dobbs majority genuflected in the general direction of judicial restraint when describing Roe, noting that it had already been reconsidered and reaffirmed, and invoked the legal fiction that they have no opinion until they have a specific case before them.

Dobbs should lay to rest forever that kabuki dance of deflection and obfuscation. The specific facts of the Mississippi statute before the Court were incidental to the conclusion it was determined to reach. The majority opinion is almost gleeful in tone as it proclaims: “Roe was egregiously wrong from the start.” Is the American public really to believe that the justices came to that conclusion only after considering the Mississippi case? And if they arrived at the Court determined to repudiate a fundamental right, what does that say about the legitimacy of their jurisprudence?

The Dobbs opinion proceeds to rehearse flaws in the Roe opinion that have been pointed out by legal scholars across the ideological spectrum for decades, barely concealing the majority’s contempt for the prior Court’s use of history and its muddled reasoning.

But as Chief Justice John Roberts explained during his confirmation hearing, “It is not enough that you may think the prior opinion was wrongly decided. That really doesn’t answer the question. It just poses the question. And you do look at these other factors, like settled expectations, like the legitimacy of the court … .”

That’s where, in my view, the Dobbs decision falls woefully short. As Chief Justice Roberts puts it in his concurrence, “If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more. … Surely we should adhere closely to principles of restraint here, where the broader path the Court chooses entails repudiating a constitutional right we have not only previously recognized, but also reaffirmed applying the doctrine of stare decisis.” The Mississippi statute on its face recognized the fundamental right of women until the 15th week of pregnancy; the issue of denying the right entirely was thus, as the Chief Justice stated, not squarely presented.

Keeping an open mind on issues not yet before the Court, tailoring opinions narrowly to the facts and issues presented, and honoring precedent particularly where it has already been reconsidered, are essential attributes of the Court’s legitimacy. These practices assure the public that the rule of law is not subject to whichever group of hard-core partisans holds the majority. Their abandonment necessarily unsettles the stature of the Court in a time of vexing polarization. Chief Justice Roberts is right. It wasn’t necessary.

Now that Dobbs is decided, how will Roe and Casey and their progeny be viewed? Do they rank, as the majority states, with cases such as Plessy or even Dred Scott as the worst in history? In my view, Roe will be remembered as a flawed attempt to recognize that, at least early during pregnancy, the decision of how to handle the issues raised by those circumstances is best left to women, and that they have a right to make those decisions, a right that diminishes as the pregnancy progresses. That right proved hard to define because the issue is so difficult, but is repudiating the right the correct course?

Consider the state of things after Dobbs. After Dobbs, a state can adopt the most draconian prohibitions, forbidding abortions even in cases of rape, incest, or where the mother is endangered, and women will have no federal recourse at all. That’s fine, the Dobbs Court would say because that law will reflect the outcome of the political process in that state. But doesn’t the 14th amendment exist to vindicate individual rights in the face of draconian legislative enactments? Do women really have no protectable interests in matters that are so intimate?

Despite their doctrinal flaws, Roe and Casey differ from Plessy and Dred Scott in a telling and, I think, significant historical respect. Unlike those decisions, which are notable for their denial of rights (in Dred Scott to personhood within the meaning of the Constitution, in Plessy to equality), Roe and Casey extended a fundamental right of personal autonomy to women while balancing that right with the state’s legitimate interest in protecting the unborn. There is a generosity of spirit underlying the cases recognizing and balancing the right to choose that distinguishes them from the decisions rooted in white supremacy.

A more interesting question may well be how history will judge Dobbs. Not only is it a case unique in Supreme Court history for repudiating longstanding fundamental rights of over half the nation’s population; it is also unique in having that radical disposition leaked to the press while draft opinions were still circulating.

Was that political dirty trick timed to the circulation of the Chief Justice’s draft concurrence and thus intended to make it impossible for that opinion to gain majority support, preserving Roe? Whatever its intent, the leak effectively boxed in Justices Kavanaugh, Barrett and Gorsuch and sealed Roe’s fate. Had they been persuaded by Chief Justice Roberts and changed their votes, they would have been viewed as traitors to the movement whose support they needed to gain their Supreme Court seats in the first instance.

If that leak is what it took to repudiate women’s fundamental right to choose, the stain on the Court’s legitimacy will last far longer than the line of cases it reversed in Dobbs.

John Farmer, Jr. was New Jersey’s Attorney General from 1999 - 2006. He has also served as senior counsel to the 9/11 Commission and as Dean of Rutgers School of Law–Newark. He is currently the director of the Eagleton Institute of Politics at Rutgers University.

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published this page in News and Politics 2022-06-27 02:34:35 -0700