At long last, the jig is up. The Republican judicial nominees who tap-danced their way onto the Supreme Court appear set to end their flimflamming and take a bow for an act of epic deception: pretending they really, truly, honestly would respect the long-established precedent set in Roe v. Wade.
If the draft opinion written by Justice Samuel Alito stands in its sum and substance, the court would turn the clock back on women’s rights by two generations, vacating a constitutional protection that has allowed millions of women to make decisions, within certain limits, about whether to carry a pregnancy to term. The decision will also shred whatever was left of the court’s reputation for nonpartisan stewardship of the law.
That so much of the draft opinion is a critique of Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) puts the lie to the earnest, assuring claims the conservative justices made during their confirmation hearings about their respect for precedent. It’s abundantly clear that the opinion derived from their long-held views, not the particulars of the case before them.
Barring a reversal, the court will hand the matter of women’s rights over to the states, just as abortion opponents have always wanted — and just as opponents of abolition, integration, and interracial and same-sex marriage had all urged in their day. That comparison will undoubtedly anger abortion opponents. But fundamental freedoms — whether on race or gender — should never be allowed to be ameliorated by state legislatures and local plebiscites. Freedom for women is not merely equality under the law with men. It is the autonomy and authority to be in control about when and whether to have a child.
President Joe Biden has urged Congress to pass legislation that would codify abortion rights into federal law. The House has already done so, and while the Senate lacks 50 votes for that particular bill, it contains a pro-choice majority. Those senators will now have to decide which is more important: a fundamental women’s right, or preserving the filibuster, which requires 60 members to move from debating a bill to voting on it.
As the issue moves from the court to Congress, voters will now know exactly who to hold accountable if abortion ceases to be a right for all American women, and they will have opportunities to do so in the years ahead. The ballot, not the bench, is the ultimate arbiter of freedom.
That is slim solace for all the American women who may soon find their rights restricted. But it is the best — and only — path forward.