Opinion | ‘Abortion Is Just the Beginning’: Six Experts on the Decision Overturning Roe

Thomas Hints at Future Battles

Melissa Murray is a law professor at New York University and a co-host of the “Strict Scrutiny” podcast. She has written that Dobbs’ decision could jeopardize the right to contraception.

There is so much to say about the opinions in Dobbs — from the maximalist majority opinion to Chief Justice John Roberts’s and Justice Brett Kavanaugh’s concurrences, which seek to impose some restraint on the majority, to the dissenters’ righteous indignation that their colleagues have laid waste to almost 50 years’ worth of precedents. But for me, the most interesting opinion is Justice Clarence Thomas’s concurrence.

Justice Thomas often writes separate opinions which fail to get the votes of other justices. It doesn’t matter. They always hit their intended targets: conservative judges in the lower federal courts. Though Justice Thomas’s legal theories seem off the wall to many, in the hands of these acolytes, many of whom are former Thomas clerks, they flourish in the lower courts, widening the Overton window of mainstream opinion and shifting the terms of our debates. In his concurring opinion, despite the majority’s assurances that the Dobbs decision is limited to abortion and does not implicate other rights, Justice Thomas endorses reconsidering the Griswold, Lawrence and Obergefell rulings. These decisions recognize a right and a right to contraception, as well as the right to have same-sex relationships with another person and to marry the same person.

All this is to say that abortion is only the beginning for Justice Thomas and the conservative legal movement at large. This concurrence will underwrite a series of challenges to rights of heart, home, and family that many of us take as a given.

When Precedent Isn’t the Most Important Thing

John GarveyHe is the president of the Catholic University of America. He is also an expert on constitutional law and religious freedom. He has written that overturning Roe “would only be the beginning” of the effort to end abortion.

According to Einstein’s theory of gravity, massive objects can warp the fabric of space around them, distorting the trajectories of nearby objects. This has been Roe v. Wade’s effect on the law. When they are applied in cases involving abortion, established doctrines can be twisted beyond recognition. Dobbs recognized this rightly and called for the repeal of the rule of stare decisis to overturn Roe.

Consider the law on religious liberty. The court’s zealous protection of Roe has squelched peaceful religious speech by sidewalk counselors. It has allowed laws to enlist religious people in plans to distribute contraceptives (in pharmacies or crafts stores, and even nuns). It has led to aggressive regulation of prolife pregnancy centers. It has weakened support for the Religious Freedom Restoration Act, which was passed unanimously in the House and by a vote of 97-3 in Senate. The A.C.L.U. voted in favor of that act. The A.C.L.U. voted in favor of the act because it was intended to accommodate diverse beliefs and creeds that are not subject to government regulation. Today, the A.C.L.U. says it can no longer support the act because it might affect “access to or referrals for abortion and contraception services.”

A reduction in the constitutionality of abortion will have a positive effect on other areas of law. This is a sign that the court is moving in a positive direction.

The Court’s Legitimacy Is at Stake

Mary Ziegler is a law professor and the author of “Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment.” She wrote recently about a shift in the anti-abortion movement toward punishing women who have abortions.

Justice Kavanaugh’s concurring opinion tries to reassure Americans that Roe will be overruled. He states that neutrality will prevail. There will not be any threat to any other constitutional right or to the thorny questions of interstate travel. These predictions are hollow given the steps taken by red states and the protests outside the court.

Justice Kavanaugh’s view on neutrality seems also misguided, at most in the context of the court’s legitimacy. This decision will be perceived as anything but neutral — it was unnecessary for the court to intervene in this case in the first place, much less overturn Roe this quickly; in doing so, the court fulfilled Donald Trump’s promise to see the end of abortion rights. This is the kind of neutrality that we should expect from the court.

The Court Resigns From Protecting Rights

Mary BonautoObergefell v. Hodges was argued by GLAD’s civil rights project director in 2015. She has spoken out about how same-sex marriages and reproductive rights are intertwined.

As the Obergefell decision explained, “Courts are open to injured individuals” who seek “to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection” – such as whether the individual or the government decides on your choice of marriage partner or sexual partner, whether you bear or raise a child and how to raise that child – “even if the broader public disagrees and even if the legislature refuses to act. The idea of the Constitution ‘was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles.’”

This paragraph in the Dobbs opinion signals a possible retreat from the court’s bedrock constitutional duty to declare and protect our rights. It makes it clear that some constitutional rights are matters for the states to decide, at a time in which some states are trying limit voter access. The submission of basic rights to vote or elections is a violation of these rights and creates uncertainty about the protections we have when we cross state lines.

Anyone concerned about civil rights or civil liberties protection should consider the Dobbs decision a call for action. The Supreme Court’s statement that the decision was limited to abortion is unacceptable and should be taken seriously. We must continue to advance our constitutional ideals, equal justice in the courts’ courts, and recognize that organizing, action, and voting are more important than ever.

A Woman’s Abortion Decision That Ignores Women

Kathryn KolbertCo-founder of Center for Reproductive Rights, argued Planned Parenthood in v. Casey before Supreme Court in 1992. She stated last year that a new strategy was needed to protect abortion rights.

I’m struck that while the majority opinion repeatedly gives great weight to the importance of protecting fetal life, it fails to discuss the effect of its ruling on women’s lives and health. The court ignores the fact that abortion bans will force women to travel hundreds to receive care. It will also expose them to criminal prosecution for procuring abortion medication on gray or black markets. It will also disadvantage women with less resources: women of color and young women. The majority opinion brushes off the import of these effects by arguing that the state legislative process will protect women’s interests, because they can vote or drop their babies on the doorsteps of fire stations.

Those of us who believe the right of women to make life decisions should be protected in the Constitution must work to elect politicians who are on our side.

What the Dissenters Did Wrong About Early Feminists

Erika BachiochiShe is a conservative legal scholar who argued that Roe V. Wade should be overturned. She is the author of “The Rights of Women: Reclaiming a Lost Vision.”

In an attempt to negate the majority’s reliance on the 14th Amendment in its reasoning, the dissent thinks it has thrown a trump card here. Yes, the 14th Amendment ratifiers didn’t understand that liberty could include an abortion right. But how could they have understood it? The dissenters ask. Women couldn’t vote; the ratifiers of the vote were all men!

This may be true. But it is worthwhile to note that the first wave of American feminists, to whom the dissent refers, were quite attuned to the relationship between abortion and women’s liberty and equality; indeed, that some women felt the need to end the lives of their unborn children revealed to them just how deeply society had failed women. Recognizing, as Victoria Woodhull did, that the rights of children “begin while yet they remain the fetus,” these early women’s-rights advocates sought equal rights – in marriage, education, property, the professions and the franchise – in part so they could carry out their responsibilities to their children, born and unborn.

In doing so, they held not a “foreshortened view” of women’s rights, as the dissent patronizingly argues, but one based on a rich understanding of human beings as fundamentally interdependent. For 19th-century women’s advocates, rights were properly grounded not in male-normative ideals of unencumbered “autonomy,” as the now-repudiated “right” to abortion was, but in our responsibilities to one another. They provide a model for how to approach a Roe-free society that does more for women than the past 50.