Jose Luis Magana/AP Photo
Abortion rights advocates demonstrate in front of the Supreme Court, December 1, 2021, as the Court hears arguments in the case of Dobbs v. Jackson Women’s Health.
In defense of its up-until-now unconstitutional abortion law, which forbids the procedure 15 weeks after a last period, with no exceptions even for pregnancies produced through sexual violence, the State of Mississippi has made the most radical possible argument to the Supreme Court. State Solicitor General Scott Stewart suggested repeatedly that overturning the two precedent-making cases Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) would be an act of legal bravery equivalent to the unanimous Court’s decision in Brown v. Board, which overturned decades of invidious precedent. He even suggested that undoing the rights of pregnant persons was akin to the work of the Court in affirming gay rights. This, despite the fact that Stewart, like all Court watchers, knows that striking the abortion landmarks from our laws immediately imperils the legal work of the past regarding access to birth control, freedom from controls on sexual behavior and expression, same-sex marriage, and although these issues were addressed on different constitutional grounds than abortion rights, mandatory sterilization and interracial marriage.
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Despite careful, precise, and judicious arguments by two experienced Supreme Court advocates, Julie Rikelman of the Center for Reproductive Rights and U.S. Solicitor General Elizabeth Prelogar, Mississippi’s garish arguments remained center stage throughout the two-hour-long morning session last Wednesday during which the Court considered the state’s abortion law. To the majority of the justices, the women’s rights arguments Rikelman and Prelogar advanced seemed to be slightly disreputable and down-market sideshows, struggling for attention against the obvious headliner.
To all appearances, a majority of the Court found Mississippi’s arguments just radical enough. Justices Thomas, Alito, Kavanaugh, Barrett, and Gorsuch seem ready to overturn Roe and Casey. One imagines they would do it today if possible, or yesterday. Chief Justice John Roberts would probably accept a pseudo-compromise that would permit Mississippi’s 15-week abortion ban to stand without vitiating 50 years of precedent. But such moderation, if we can call it that, is a sucker’s game. The kind of conservatism Roberts would probably prefer, which empties precedent while nominally respecting it, has lost its usefulness for the contemporary American right wing.
Justices Kagan, Breyer, and Sotomayor sounded tired, no doubt because they’ve been arguing for months with their colleagues about the even more extreme Texas abortion case, which has still not been resolved. As legal scholar Melissa Murray opined on Twitter, at a certain point Sotomayor in particular seemed to accept where things were going, and used her allotted time to start drafting her dissent, speaking for posterity rather than trying to change the minds of anyone in the room.
Listening to oral arguments, I had a feeling I remember having had only once before, the evening and morning when it became clear that Donald J. Trump was going to be president. I felt subjugated, like really, in my bones. I had the sense of being a member of a conquered people. I understand that it’s a great sign of my privilege, as a non-indigenous American, legally authorized citizen, English speaker, white person, child of the (mostly) stable middle class, and Ashkenazic Jew from post-WWII New York City, to not have this feeling every freaking day of my life. It is no less terrifying.
What is this like? It’s like knowing that the people directing affairs are not just my intellectual and political antagonists but in important ways my enemies—people with interests opposed to mine who are able to act on those interests because they have more raw power than my people do. They may talk about high constitutional, political-theoretical, or historical principles. But deep down, they know, and they know I know, that those principles aren’t really what’s at stake. What’s at stake is that they are in charge. My people get to tell our stories, and have our demonstrations, and write our well-researched friend-of-the-court briefs (I was a signatory to one such brief), and generally get what we want off our chests. But they’re going to make sure we lose.
GOING BEYOND EVEN the bracing scope and tone of his legal team’s brief, which treated the big abortion precedents as “hopelessly unworkable,” Stewart offered a lurid reading of their negative dimensions. It was a gothic tale of abortion rights as a specter that continues to “haunt” our society and must finally get a stake to the heart. He picked up the revanchist trick of turning people with vast power into victims, rallying them on behalf of a further exercise of power, framing abortion rights as “poisoning” the law.
This certainly sounded like an invocation of the victimhood of the aborted fetus, even as it called to mind the thousands of women who have poisoned themselves to death in desperate efforts to end their pregnancies. But it also reminded me of then-judge Kavanaugh’s tears of self-pity during his confirmation hearings, the same tears Kyle Rittenhouse shed during his prosecution, the same assertion of victimhood (“legal lynching”) that Justice Thomas invoked during his confirmation hearings.
To all appearances, a majority of the Court found Mississippi’s arguments just radical enough.
Stewart stepped beyond what even a confident far-right jurist might have been expected to find palatable or politically wise, wrapping his cause, once legible as a lodestone of sexist law, in the hero’s cape of civil rights champions. He went so far as to liken his aim to eviscerate constitutionally protected reproductive rights to Justice John Marshall Harlan’s dissent on behalf of Black Americans in the notorious pro-segregation case Plessy v. Ferguson (1896). The claim, in essence: Vitiating reproductive rights is just as good as defending Black civil rights.
The argument was full of distortions. Stewart started with a series of bold claims that were never fully put to rest in the course of the questioning. He described abortion precedents as strangers to the Constitution, which they are not: As both Rikelman and Prelogar explained in response to repetitive questioning by Justice Thomas, the constitutional principle in play is liberty, as in the provision of the 14th Amendment that no state can deprive citizens of “life, liberty, or property without due process of law.” For generations, federal courts have held that “due process,” which may originally have referred only to the right to a fair trial, has a “substantive” dimension, and within that, protection for the kinds of intimate, familial, bodily, and, yes, sexual questions that may make lawyers in their advanced years squirm (except when they are hitting on their subordinates) but which are, nonetheless, definitely inside the constitutional tent and not straggling in its wilderness.
Stewart then described the abortion cases as outside of U.S. history. This, too, is untrue. Much of the reason that Roe v. Wade turned out as it did had to do with the common law that existed in English North America before the revolution. Under the common law, abortion was acceptable prior to what was called “quickening,” the point in a pregnancy when a mother could feel the incipient baby kicking. This old Anglo-American legal idea accords well with the trimester framework that the author of the Roe opinion, Justice Harry Blackmun, employed: It is usually around the 24th or 25th week of a pregnancy, the end of the second trimester, that a pregnant person is first able to feel the incipient life she carries move.
The state of Mississippi argued, too, that the abortion decisions of the Supreme Court had “choked off compromise.” This jibed with a repeated theme in the state’s argument, that the issue had to be returned to “the people,” meaning, apparently, to state legislatures. These are nice ideas, compromise and people. It is difficult to see how either of them will play much role in the state-level abortion politics we are likely to see in coming months and years, as the Republican Party commits itself ever more to a never-compromise position exemplified by its treatment of its few members who voted for their constituents’ interests in helping to pass the recent infrastructure bill, and refuses even to “compromise” to the point of acknowledging the legitimate resolution of the last presidential election. The last thing the GOP seems to want is rule by “the people,” simple majorities of whom, in every opinion poll, continue to resist a barrage of propaganda to support an approach to abortion law that is considerably more liberal than Mississippi’s.
Up until now, the idea of viability has been consistently applied by federal courts to strike down state laws like the ones Mississippi and Texas are trying to foist on their citizens.
HERE ARE A FEW MORE specific lowlights of the arguments that indicate the state of sex, gender, reproduction, and women’s autonomy in today’s elite jurisprudence:
“There are two interests at stake … You have to pick.” The point at which Justice Kavanaugh said this in colloquy with Prelogar was one of the most honest in the oral argument. Kavanaugh, who some had thought would lean toward preserving the big abortion precedents even if he also found a way to let Mississippi keep its draconian abortion ban, essentially confessed that he understood the issue as one of inevitable conflict between a pregnant adult and the potential life they carry—and that he and the majority he represents are for the potential life over the existing one.
To this I say: Sure, if we’re being intellectually consistent and taking as our highest value legal rules that are easy to understand and implement (but is that our highest value?), then we should pick. And there’s no doubt in my mind that we should pick the living, adult, pregnant person and get the government completely out of the business of micromanaging their decisions about sex, birth, romance, intimacy, and parenting.
But assuming that my position, which was held by a wide coalition of feminists and other advocates in the late 1960s and early 1970s, is a political no-go: Why does one have to choose between the interests supposedly represented here, really? Roe v. Wade is unsatisfying to almost everyone because it balances between what the justices understood as two legitimate interests, women’s in being free of oppressive, male-supremacist control over their ability to shape their destinies, and some citizens’ in wanting to act through their state governments to preserve what they understand as fetal life. The three-trimester idea was a balance between what the Supreme Court in Roe understood as those competing interests.
What the Supreme Court did in Casey and subsequent cases, making it OK for states to enact many abortion restrictions up to the point of fetal “viability,” the point at which a fetus might theoretically be able to survive outside its parent’s body even though it is in fact dependent upon that body, is a newer encapsulation of that balancing. Although Mississippi did its best to batter the viability idea as unworkable, incoherent, or inconsistently applied, it’s actually pretty clear, but for the fact that a ginned-up and overfinanced minority movement opposed to reproductive rights keeps feeding aggressive challenges to it to the courts. Up until now, the idea of viability—a result of negotiation among Supreme Court justices, representing consistent public-opinion findings that Americans believe abortion should be legal with some qualifications—has been consistently applied by federal courts to strike down state laws like the ones Mississippi and Texas are trying to foist on their citizens right now.
Where Is Newt Gingrich When You Need Him? Some readers may remember how sharply liberals lampooned former House Speaker Newt Gingrich when he argued in the mid-1990s that children whose parents relied on public aid for their economic survival might be better off in private orphanages than in their parents’ homes, in an upscale rendition of Oliver Twist. The contemporary Supreme Court version of this is that state governments should be allowed to compel people who would like to end their pregnancies to carry those pregnancies to term and endure the labor and delivery processes against their will. Skirting what for the parent are far easier and healthier alternatives, and abrogating her desire to shape her own life, Justice Barrett proposed she drop her young infant off at the fire station or social welfare office, under the protection of a “safe haven” law. Under these laws, operative in all 50 states, new parents are given the jolly alternative of anonymously relinquishing all parental rights to the children they have just birthed, and committing them to the tender mercies of the foster care and adoption systems, which as Dorothy Roberts has emphatically argued, are not just perennially ridden by scandal but racist.
So the hard right again avoids helping people who have the capacity to get pregnant and their partners to parent by providing public financial aid, or to avoid parenting safely and legally via abortion. It fails to confront the obviously totalitarian dimensions of what reproductive rights lawyers 50-plus years ago called the cruel and unusual punishment inherent in forced pregnancy.
One big difference between the age of Gingrich and now is the presence of Justice Amy Coney Barrett, who is a direct-from-central-casting spokesperson for this oppressive policy regime. This is why the conservative legal movement promoted her to Donald Trump, and why she is now an associate justice. As her colleagues in the elite legal world know, Barrett and her husband parent seven children: five biological, including one with Down syndrome, and two Black children adopted from Haiti.
The conservative male justices seemed to delight in hearing Barrett pose the adoption question. Most likely, they see her as a sitting rebuke to the ideas that underlie claims for abortion rights: that pregnancy and motherhood are burdensome, and that the freedom to avoid them deserves constitutional protection because, especially when they are not chosen, they can foreshorten people’s aspirations and their educational and career horizons. Barrett’s advocacy of “safe haven” fetal abandonment at the moment of birth—which seems like a weird “pro-life” policy to me—opens the possibility that forced pregnancy would not inevitably lead to forced motherhood. So it’s fine then! Barrett’s own illustrious career supposedly cancels out the idea that, in case the “safe haven” thing doesn’t work out, motherhood need ever get in one’s way.
The People . . . Many People; Many States . . . Some States. There were a couple of points of auto-correction by opponents of abortion rights that I found particularly revealing. These seemed the products of an impulse that is familiar from my own life: a reflex to eliminate one’s own hyperbole even as it is coming out of one’s own mouth.
In colloquy with Ms. Rikelman, for example, Justice Kavanaugh slipped briefly from referring to the “many states” that would be expected to maintain legal abortion access after a Supreme Court reversal for the big precedents, to representing them more accurately as “some states” that would retain the right. This prediction was the other side of the coin to his apparent preference for reading the Constitution as “neutral” regarding sexual liberty in the abortion realm. As it lays the ground for overturning Roe, the right finds it useful to pretend that it believes in a post-Roe scenario in which there would be genuine political and policy diversity across the United States, the expression of a popular will that differs, say, between Vermont and Mississippi.
Of course, legal, safe, and accessible abortion in the “many states” whose populations prefer it is not what Justice Kavanaugh or the anti-abortion right wing really wants. Twelve states have on their statute books “trigger laws” that immediately criminalize abortion if the issue is returned entirely to the statehouses. Ten more would not enact outright bans but would come close, with state laws ready to go into effect that include severe, pre-viability restrictions on abortion access. The Guttmacher Institute adds another four to that list, totaling 26 where abortion would be certainly or likely illegal after the Court’s ruling.
These states include the entire South, from Texas to South Carolina, and the entire Midwest except Illinois and Minnesota. There are more than 40 million women of reproductive age living in states that will immediately ban or nearly ban abortion if the Court does what it now seems poised to do. And the anti-abortion right, with its bottomless well of financial resources and anti-democratic toolkit of voter suppression and skewed districting, will restrict abortion access in as many of the remaining states as it possibly can.
At another point in the session, Mississippi’s Stewart momentarily dropped the pretense that he was speaking for “the people,” who were supposedly clamoring to sort out the abortion issue in their Norman Rockwellian, small-d democratic statehouses. He came out of the gate strongly on this point, setting up an opposition between this mythic embodiment of the national spirit and the justices who ruled in Roe and Casey. But under questioning from Justice Breyer, Stewart halted in his invocation of “the people” and instead spoke of just a bunch of people, “many, many people.” Not the spirit of the land, that is, but something more material and true: a group perhaps numerically large but neither ubiquitous nor in the majority.
This is the grammatically and conceptually accurate body the state of Mississippi represented and for which the Supreme Court majority now seems eager to throw long-standing precedent out the window: a group of “many,” but not that many, who want the Supreme Court to stop defending the right to terminate a pregnancy, and an unpredictable number of other rights besides.
