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

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.