The Supreme Court Won’t Stop with Roe v. Wade

A draft opinion from February in Dobbs v. Jackson Women’s Health Organization leaked detailing the conservative court’s opinion overturning Roe v. Wade. The Court was very explicit, “we hold that Roe and Casey must be overruled. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” 

If the language remains unchanged this would return abortion regulation back to the states and endanger abortion access in 35+ states controlled by Republicans. Samuel Alito, the conservative justice who authored the opinion didn’t hold any punches. “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division,” wrote Alito. This opinion would represent the culmination of decades of conservative judicial activism hellbent on overturning Roe. 

It’s worth noting that this is a relatively early draft and could still change. However, this matches the longstanding views of justices like Samuel Alito, Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett who will all find themselves in the majority opinion when this or a similar draft eventually becomes law early this summer. As evidenced by the fact that they all reportedly supported the draft in committee. 

Again a lot can change until it’s final and law, but the trajectory of the conservative legal movement has brought us to this moment. At oral arguments on the case months ago it was clear we were headed in this direction. It’s not going to stop here though. 

This Fight is Much Bigger Than Roe v. Wade 

The fight won’t end with Roe. Roe was based on a notion that the constitution enshrines rights through substantive due process that aren’t explicitly laid out in the text of the document. Substantive due process enshrines various rights, including the right to parent children, the right to contraceptives, the right to marriage (interracial, gay, and as a prisoner), and the most controversial perhaps, the right to an abortion. These rights have become the bedrock of social and sexual freedom and that is the project the conservative judicial movement and Supreme Court are actually attacking.

Cases like Griswold v. Connecticut that enshrined a right to contraceptive use and Hodges v. Obergefell that legalized gay marriage are in imminent danger. These are rights that for many seemed secured beyond a doubt. Conservative states are already levying legal challenges aimed at undermining the case law, but Roe and Casey are the crowned jewels of those efforts and a straight repeal of Roe could signal the unraveling of those rights from Roe backwards. Meaning these rights were secured in a succession of cases that further enshrined substantive due process and a right to privacy. Roe and upholding it in Casey were the culmination of a progressive legal strategy that will now be unraveled. 

This was intentional and taking down this broader set of 14th amendment guaranteed freedoms was always the point. It won’t be long until a majority of states have laws surrounding abortion, reproductive health generally, or sexual/gender identity more broadly, that essentially mirror those of the 1950s. That is the point, that has always been the point, and the conservative legal movement has finally secured their greatest victory. 

Abolish the Supreme Court 

It’s worth taking a moment to reflect on the fact that Roe and Obergefell and many cases which have shaped the liberal conception of the courts are exceptions to a steadfast rule. That rule? The Supreme Court is there to take rights away, not extend them or enshrine them. Throughout American history the Court has served capital and white supremacy at almost every turn, a few high profile exceptions to that in the last few decades should not muddy the waters. The Supreme Court is an unelected, unaccountable body of 9 octogenarians who are there to be a check on what the people actually want, very explicitly. 

The solution is multifaceted obviously and organizing for abortion access and reproductive justice is more important now than ever. But in a broad theoretical sense it’s important to keep the Court in its proper context. Nine unelected bureaucrats with the power to upend decades of social tradition and the material reality access to those rights allowed for. These rights should have been protected by a broad political movement at so many points over the course of the last few decades. Democrats could have used their political power to further remove this from reactionary politicians, but they never did. This is a broader failing of political power and the Supreme Court isn’t the solution to that. In fact, it’s one of the biggest barriers.