News

The Supreme Court 'bows out' on abortion, former federal judge says

Abraham Sofaer sees a future that does not bode well for contraception, other rights

The Supreme Court Building in Washington, D.C. Courtesy Getty Images.

While Friday's U.S. Supreme Court decision to overrule Roe v. Wade leaves it to state legislatures to decide whether and how to implement abortion rights, there will likely be many additional issues that could further limit women's reproductive rights and even access to contraception, retired U.S. district court Judge Abraham D. Sofaer, an expert in separation of powers and a Hoover Institution at Stanford University fellow, said in an essay he shared with this news organization analyzing the decision.

Retired U.S. district court Judge Abraham D. Sofaer. Courtesy Abraham Sofaer.

Justice Samuel Alito, supported by four other justices, decided in the case Dobbs v. Jackson Women's Health organization to overturn the Supreme Court's 1973 decision in Roe v. Wade, which had granted a woman's right to an abortion for the last 49 years. Roe v. Wade found that state legislatures had limited power to regulate a woman’s access to abortion.

The majority of the court on Friday, however, opined that no legitimate basis exists upon which to rest any right to an abortion under the U.S. Constitution, Sofaer noted.

The justices in the minority, meanwhile, supported the legality of Roe.

"Chief Justice Roberts agreed that the Mississippi law at issue should be upheld; but he saw no need to consider whether Roe should be overruled. The three other justices dissented, vigorously criticizing the majority for depriving women of a long-established right," Sofaer wrote.

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The turbulence within the Supreme Court that led to overturning Roe had been brewing for decades, he noted.

"From the year I had the privilege of clerking for Justice William J. Brennan, Jr. (1966-67), I became aware of the battle underway at the Court over its role in protecting and developing individual rights not explicitly mentioned in the Constitution. The Justices who supported an active role for the Court in this regard succeeded in establishing individual rights in several areas of constitutional jurisprudence. Some of their decisions were criticized, but none as vehemently as Roe v. Wade, which became a rallying cry in the push to curb the Court’s activism," said Sofaer, who is also the Hoover Institution's George P. Shultz Senior fellow in foreign policy and national security affairs, emeritus.

The court became a focus of political debate, as it has been at various points in American history, he said. Appointments to the court gradually became politicized. The tradition of requiring a 61-vote majority for confirmation of justices was abandoned in 2017 — after the practice was abandoned for all other judges in 2013, he noted.

"This made the confirmation process in the Senate increasingly partisan and nasty. While the decision in Dobbs infuriated many, it should have surprised no one. The Justices who voted to overrule Roe were clearly among the jurists and commentators who disfavored the Court’s activism and who were nominated with the purpose in mind that they would vote as they did in Dobbs," he said.

A huge battle will now ensue over abortion rights, Sofaer said.

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"That has always been clear as far as the States are concerned: Already eight states, including California, have laws extending substantial abortion rights; and 13 have 'trigger' laws to ban abortions upon the Court’s long expected decision rejecting Roe. Many more states will take positions granting or denying such rights within the next year, and the principal issue for the courts will be whether women can cross borders to obtain greater rights based on the right to travel within the U.S.," he said.

Other important issues remain to be addressed as a result of the decision, Sofaer said.

"The key, practical question is whether women can be denied the right to obtain pills that prevent or abort pregnancy. More than 50% of abortions are estimated to be caused by pills, not surgical procedures.

"Assuming the Court will defer to legislative judgments on access to pills, will the Court go so far as to allow legislatures to prevent women from obtaining or using pills even to prevent conception? The Court’s flat refusal to give substantive weight to the right to privacy in Dobbs does not bode well for the future of contraception rights," he said.

Another major question is whether the Dobbs decision will lead Congress to act, he said. About 70% of American voters support some form of abortion rights, and their legislative representatives may give substance to that support, he said.

"Feelings on this issue might become so intense that supporters of abortion rights may try to push legislation through the Senate without regard to the closure rule that could currently be used to block any but fiscal legislation and appointments with as few as 40 votes. And if this happens, will the Court insist that the States, and not Congress, have the final authority on abortion rights?" he said.

How important will this issue become in some states, and in Congress?

"At least some elections are likely to turn on the issue," he wrote, "and the presidential election may well be affected.

"While the Court majority in Dobbs correctly asserted that Roe had remained controversial, Dobbs too will remain controversial. The issue will have no material impact in California, where abortion rights are assured under various State laws. But Californians will be leading proponents of a national law extending abortion rights.

"The battle over abortion rights seems likely to continue, therefore, not just in the States, but with much greater vehemence on the national level," he said.

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Sue Dremann
 
Sue Dremann is a veteran journalist who joined the Palo Alto Weekly in 2001. She is a breaking news and general assignment reporter who also covers the regional environmental, health and crime beats. Read more >>

Follow Palo Alto Online and the Palo Alto Weekly on Twitter @paloaltoweekly, Facebook and on Instagram @paloaltoonline for breaking news, local events, photos, videos and more.

The Supreme Court 'bows out' on abortion, former federal judge says

Abraham Sofaer sees a future that does not bode well for contraception, other rights

by / Palo Alto Weekly

Uploaded: Sat, Jun 25, 2022, 9:46 am

While Friday's U.S. Supreme Court decision to overrule Roe v. Wade leaves it to state legislatures to decide whether and how to implement abortion rights, there will likely be many additional issues that could further limit women's reproductive rights and even access to contraception, retired U.S. district court Judge Abraham D. Sofaer, an expert in separation of powers and a Hoover Institution at Stanford University fellow, said in an essay he shared with this news organization analyzing the decision.

Justice Samuel Alito, supported by four other justices, decided in the case Dobbs v. Jackson Women's Health organization to overturn the Supreme Court's 1973 decision in Roe v. Wade, which had granted a woman's right to an abortion for the last 49 years. Roe v. Wade found that state legislatures had limited power to regulate a woman’s access to abortion.

The majority of the court on Friday, however, opined that no legitimate basis exists upon which to rest any right to an abortion under the U.S. Constitution, Sofaer noted.

The justices in the minority, meanwhile, supported the legality of Roe.

"Chief Justice Roberts agreed that the Mississippi law at issue should be upheld; but he saw no need to consider whether Roe should be overruled. The three other justices dissented, vigorously criticizing the majority for depriving women of a long-established right," Sofaer wrote.

The turbulence within the Supreme Court that led to overturning Roe had been brewing for decades, he noted.

"From the year I had the privilege of clerking for Justice William J. Brennan, Jr. (1966-67), I became aware of the battle underway at the Court over its role in protecting and developing individual rights not explicitly mentioned in the Constitution. The Justices who supported an active role for the Court in this regard succeeded in establishing individual rights in several areas of constitutional jurisprudence. Some of their decisions were criticized, but none as vehemently as Roe v. Wade, which became a rallying cry in the push to curb the Court’s activism," said Sofaer, who is also the Hoover Institution's George P. Shultz Senior fellow in foreign policy and national security affairs, emeritus.

The court became a focus of political debate, as it has been at various points in American history, he said. Appointments to the court gradually became politicized. The tradition of requiring a 61-vote majority for confirmation of justices was abandoned in 2017 — after the practice was abandoned for all other judges in 2013, he noted.

"This made the confirmation process in the Senate increasingly partisan and nasty. While the decision in Dobbs infuriated many, it should have surprised no one. The Justices who voted to overrule Roe were clearly among the jurists and commentators who disfavored the Court’s activism and who were nominated with the purpose in mind that they would vote as they did in Dobbs," he said.

A huge battle will now ensue over abortion rights, Sofaer said.

"That has always been clear as far as the States are concerned: Already eight states, including California, have laws extending substantial abortion rights; and 13 have 'trigger' laws to ban abortions upon the Court’s long expected decision rejecting Roe. Many more states will take positions granting or denying such rights within the next year, and the principal issue for the courts will be whether women can cross borders to obtain greater rights based on the right to travel within the U.S.," he said.

Other important issues remain to be addressed as a result of the decision, Sofaer said.

"The key, practical question is whether women can be denied the right to obtain pills that prevent or abort pregnancy. More than 50% of abortions are estimated to be caused by pills, not surgical procedures.

"Assuming the Court will defer to legislative judgments on access to pills, will the Court go so far as to allow legislatures to prevent women from obtaining or using pills even to prevent conception? The Court’s flat refusal to give substantive weight to the right to privacy in Dobbs does not bode well for the future of contraception rights," he said.

Another major question is whether the Dobbs decision will lead Congress to act, he said. About 70% of American voters support some form of abortion rights, and their legislative representatives may give substance to that support, he said.

"Feelings on this issue might become so intense that supporters of abortion rights may try to push legislation through the Senate without regard to the closure rule that could currently be used to block any but fiscal legislation and appointments with as few as 40 votes. And if this happens, will the Court insist that the States, and not Congress, have the final authority on abortion rights?" he said.

How important will this issue become in some states, and in Congress?

"At least some elections are likely to turn on the issue," he wrote, "and the presidential election may well be affected.

"While the Court majority in Dobbs correctly asserted that Roe had remained controversial, Dobbs too will remain controversial. The issue will have no material impact in California, where abortion rights are assured under various State laws. But Californians will be leading proponents of a national law extending abortion rights.

"The battle over abortion rights seems likely to continue, therefore, not just in the States, but with much greater vehemence on the national level," he said.

Comments

Mark Goren
Registered user
Barron Park
on Jun 25, 2022 at 11:26 am
Mark Goren, Barron Park
Registered user
on Jun 25, 2022 at 11:26 am

The Supreme Court made the right decision by turning this issue over to the states.

There is no mention of abortion in the Constitution and states retain the rights to govern non-Constitutional matters such as marijuana sales, legal driving age, legal drinking age, legal marital age, and access to abortions.

Abortion is not illegal depending upon where one goes for the procedure.


ndn
Registered user
Downtown North
on Jun 27, 2022 at 10:05 am
ndn, Downtown North
Registered user
on Jun 27, 2022 at 10:05 am

Apparently Marek Goren has decided to ignore the parts of the Constitution that do not serve his argument.
So, here it is :
"NINTH AMENDMENT
Non-Enumerated Rights Retained by People
Passed by Congress September 25, 1789. Ratified December 15, 1791.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."


Anneke
Registered user
Professorville
on Jun 27, 2022 at 3:47 pm
Anneke, Professorville
Registered user
on Jun 27, 2022 at 3:47 pm

I do not understand how Justice Clarence Thomas can live with himself, his oath to the Constitution, and his apparent lies while being under oath:

1. Lillian McEwen, a former lady friend of Justice Thomas talked about his "obsession with pornography."
Web Link

2. Anita Hill who testified in 1991 and accused Justice Thomas of sexual harassment in front of a committee of 14 white men, who grilled her in a televised live hearing. Ms. Hill passed a highly reliable lie detector test. As a smart Afro-American woman, she had no chance whatsoever. When President Biden took office, he officially apologized to her, since he was part of the committee.

3. Roe v. Wade, overturned. Next, same sex marriage, after that contraception.

4. Of course, he will never touch interracial marriage, since his second wife, Ginni Thomas, is a white woman, and who is now being questioned for her attempts to overturn the 2020 elections.

His hypocrisy and his sins should have never allowed him to become a High Court Justice. If he can overturn Roe v. Wade, why can't we overturn his Justiceship?


Mark Wilson
Registered user
Portola Valley
on Jun 27, 2022 at 4:17 pm
Mark Wilson, Portola Valley
Registered user
on Jun 27, 2022 at 4:17 pm

For a thoughtful discussion of non-enumerated rights check out Ezra Klein"s recent podcast "The Dobbs Decision Isn't Just About Abortion. Its About Power" with legal correspondent, and Stanford Law graduate, Dahlia Lithwick.


Anneke
Registered user
Professorville
on Jun 27, 2022 at 4:19 pm
Anneke, Professorville
Registered user
on Jun 27, 2022 at 4:19 pm

I just read the enclosed article on Joe Scarborough (Morning Joe) calling out Clarence Thomas for Targeting Birth Control and LGBTQ Rights, Not Interracial Marriage: "Hypocrisy." We apparently think alike.

Web Link


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