What just happened
- The UK’s Charity Commission said it would review a gift to Prince Charles of a million euros in cash in a suitcase.
- Kyiv came under missile attack from a Russian vessel in the Caspian Sea.
- G7 leaders said they would back Ukraine militarily, economically and diplomatically for “as long as it takes” to prevail against Russia.
Three days into the post-Roe age, six US states have already banned abortion even in cases of rape and incest. Ten more will have complete prohibitions soon, or already have with very narrow exceptions.
Democrats are casting around in what feels like desperation for political responses to a 30-year legal ambush that happened in plain sight but still caught them napping.
And Americans who still believe in checks and balances are wondering what it means that six supreme court judges could ignore the preference of 60 per cent of voters.
Fifteen words is all it took for the US Supreme Court to overturn nearly 50 years of precedent and remove the constitutional right to access abortion for 40 million American women.
“The Constitution does not confer a right to abortion; Roe and Casey must be overruled” is the majority opinion (5 to 4) of the court, released on Friday. The justices were ruling on the constitutionality of Mississippi’s bid to ban abortion after 15 weeks, a law opposed by the state’s only abortion clinic.
Fed to state. Justice Samuel Alito, who wrote the majority’s final opinion, continued: “The authority to regulate abortion must be returned to the people and their elected representatives”. His argument is that state assemblies rather than the federal government are the place to debate abortion.
In practice that means:
- 26 states are likely or certain to ban it.
- In 13 of those states, laws already in place and designed to be triggered by the court’s ruling will take effect immediately or within the next 30 days.
- 57 per cent of American women of reproductive age (15-49) now live in states hostile to abortion rights.
- These states are home to a majority of women most likely to have an abortion, including young mothers, Black women and women living below the poverty line. See our Sensemaker on who abortion bans hurt for more analysis.
A country divided. Another key plank of the Alito opinion is that Roe – and the subsequent Planned Parenthood v Casey case that upheld Roe – “enflamed debate and deepened division”. There is little sign those rifts will be closed in absence of Roe.
The Michigan example. A 1931 pre-Roe state law treats abortion in Michigan as a felony for health care professionals and without exceptions for rape and incest. Without Roe, it’s set to become law again. Michigan’s democratic Governor Gretchen Whitmer has already sworn to “fight like hell” to block it. The state’s attorney general, Dana Nessell, has also refused to enforce the law. So far, she has obtained a temporary injunction.
But Republican leaders in the state legislature, Right to Life groups and the Michigan Catholic Conference have vowed to defend its enforcement – and Nessell cannot prevent prosecutors bringing cases. Expect similar battles to emerge in legislatures and courtrooms across the country.
On the Hill. In Washington, where protests and celebrations are being held on the steps of the Supreme Court, Biden’s current plan is focused on Congress and on medical as opposed to surgical abortions; ie on laws and pills.
- Laws. Previous attempts to pass a federal law protecting the right to abortion have been thwarted by Senate Republicans.
- Pills. The Guttmacher Institute estimates that 54 per cent of all abortions performed in the US in 2020 were medication abortions. When two pills (mifepristone and misoprostol) are taken together they are 95 per cent effective at ending a pregnancy and are FDA-approved up to 11 weeks after the last period.
Attempts to block access to these pills, Biden said, are “wrong and extreme and out of touch with the majority of Americans”. But legislating at a federal level on the use of FDA-approved medicines in order to trump state law is uncharted territory.
Impact on the court. Brazen defiance of public opinion is always a dangerous strategy, but the majority opinion insists it’s not concerned with such things; only with the law. Nonetheless Noah Feldman, a law professor at Harvard and former Supreme Court clerk, calls the decision “is an act of institutional suicide”. Biden also took a carefully worded shot at the court for “some terrible decisions” – a nod to the Roe ruling but also to a separate judgment last week blocking attempts to increase gun ownership restrictions in New York, despite recent mass shootings.
The theory. The legal bases for the Alito opinion are originalism and textualism. The application, in this case, is simple: abortion wasn’t written into the constitution, therefore it shouldn’t legally be seen as a constitutional right. Alito argues that
- Roe was “egregiously wrong” for protecting access to abortion under the 14th Amendment’s right to privacy;
- and that Casey was just as wrong for protecting Roe within the right to liberty.
Lies and half-truths. Congressional representatives on both sides of the aisle have expressed anger that the conservative justices went back on promises made in confirmation hearings to not “rock the boat”. They shouldn’t have been surprised.
Justices Brett Kavanaugh, Neil Gorsuch and Amy Coney-Barrett all have long-standing links with the Federalist Society: a legal advocacy group for textualism and originalism. As Republican Senator Lindsey Graham told reporters yesterday: President Trump deserves the “lion’s share” of the credit for fighting “like a tiger” to put them on the court.
To note:
- Though little consolation for women with unwanted pregnancies elsewhere, 11 states including New York and California have ensured legal and expanded access to abortion since the Mississippi case was brought.
- It would have been a very different world had Hillary Clinton won in 2016 (hat-tip, NPR).
