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The End of Roe: Reader Comments

Given the big news on Friday, this weekend is a little different from most and—as promised—we're doing both comments and questions today. We'll start with some comments from practicing lawyers:

The Lawyers Speak

A.R. in Los Angeles, CA, writes: I am the President of the Board of the Trust Women Foundation, which runs clinics that provide abortion care in Kansas and Oklahoma. I am not neutral on the subject of abortion—what Republican politicians, including those on the Supreme Court, have done is to create a manufactured public health crisis. We see that play out everyday in our clinics, and long before the Dobbs decision came down. For women in the region where our clinics are located, Roe was effectively overturned some time ago. And it's not just that women have been denied meaningful access to abortion—it's far worse. The criminalization of pregnancy is already a reality for poor and minority women living in the wrong state. In Wisconsin, for example, juvenile courts can take custody of a fetus—meaning lock up a pregnant woman, for the fetus' "protection"—resulting in the detention of more than 400 women each year on suspicion of the use of controlled substances. In Oklahoma, women are being prosecuted for manslaughter for miscarriages, again on the suspicion of using drugs. And that's before we get into fetal personhood statutes, which have already passed in Georgia and Alabama.

Frankly, many pro-choice advocates have rested on Roe's guarantee of the right to an abortion and essentially acquiesced in the mistreatment of poor and minority women in states hostile to abortion. "Reproductive rights" does not equal "reproductive justice." Dobbs may have unintentionally shone a spotlight on the horrors that women have been enduring even while Roe stood. Now that these laws are coming to a state near you and coming after women who are wealthy and white enough to have avoided these laws' reach until now, we may finally get serious about maternal health and the inequities of reproductive healthcare.

I won't deny that trying to put on a political hat for E-V.com readers, in order to predict the ramifications of this decision. may require an objectivity that I don't possess. Nevertheless, there are some crucial upcoming votes that could signal whether the predicted backlash is real or imagined. The first critical test is in Kansas. Pro-choice advocates who have seen the writing on the wall with respect to Roe have pivoted to the states to test the reach of their constitutions. In 2019, the Kansas Supreme Court held that its state constitution protects the right to an abortion due to an explicit right of privacy in that document. As a result of that decision, Republican state legislators have put a measure on the August 2 primary ballot to amend the state constitution to strip away that right. Kansas is a conservative state, and its state legislature is controlled by Republicans, but the governor is a Democrat. It also has a strong libertarian streak with a distrust and distaste for big government.

When we speak to people on the ground about abortion, the responses are very interesting and not at all predictable. While many people identify as "pro-life" and wouldn't themselves choose to have an abortion, they are also skeptical of having the government or politicians make those decisions for women and their families. Before Dobbs, I would say we had a good chance of defeating this measure, if turnout was there—and that was a big "if." But now it's possible that Dobbs has solved our turnout problem. The leaked draft opinion certainly put this issue more in the forefront for many people, but while Roe was still technically on the books, it was tempting to think the Court's final opinion would keep Roe intact. Now that the Court has overturned Roe v. Wade, there's no avoiding the reality that American women went to sleep Friday night with fewer rights than when we woke up. As I say, I am not objective, but this is shaking a lot of people up. And I am hopeful it will motivate them to vote. We won't have long to wait to see if that is the case, as August 2 is only a few short weeks away. If Kansans vote to keep those protections in place and defeat this ballot measure, then those poll numbers that show a majority of Americans supporting abortion rights will not be a phantom but will have translated to the ballot box. That will mark a sea change in how pro-choice advocates see supposed "red" states and will drive greater efforts to expand access and promote reproductive justice in areas that have been ignored for too long.

V & Z respond: We have used A.R.'s initials in accordance with our usual policy, but recognize that A.R. has included enough information here that their identity could be determined by someone with Google.


P.D. in Charlottesville, VA, writes: I just finished reading the Supreme Court's decision to overturn Roe and Casey. The decision is tragic. I'm sure other contributors will thoroughly cover the many flaws in the decision's reasoning and its unjust impact, so I'd like to just make two points concerning, respectively, the potential future of the Court's jurisprudence and a possible immediate course of action to parry the Court's decision.

First, Justice Thomas' concurrence foreshadows a potentially ominous future. After concurring that the Court's decision has no immediate impact on prior decisions concerning substantive due process, he writes that the Court should nonetheless reconsider all precedents concerning substantive due process, including Griswold v. Connecticut (the decision that upheld the right to contraception), Lawrence v. Texas (the decision that decriminalized "sodomy"), and Obergefell v. Hodges (the decision that upheld the right to same-sex marriage). While only a concurrence that carries no force of law, Thomas' opinions frequently portend the future of conservative jurisprudence, as illustrated by the Dobbs decision itself.

Second, a potential response. There is a short window of opportunity to pass a measure through the House and Senate that guarantees a nationwide right to seek and obtain an abortion. If the filibuster continues to be a barrier in the Senate, there surely is a way to include it in a reconciliation measure that would require only 50 votes (plus the VP). For example, establish a federal program that provides vouchers to those who need financial assistance to obtain an abortion or related care. Or subsidies for clinics that provide such care. Or even just a tax credit for those clinics. Further, provide that the measure supersede any state or local laws. That would render any state-level abortion bans unconstitutional in accordance with the supremacy clause. Such a measure should have sufficient budgetary impact to survive the scrutiny of the Senate's parliamentarian.

If passed, it would also turn the midterm election into a referendum on women's right to choose (if it isn't already), specifically whether each candidate supports that program remaining codified or overturning it. It's good policy and good politics.


R.E.M. in Brooklyn, NY, writes: On Saturday, you hit all of the points I'd thought of—the imbecility of Jill Stein voters in Michigan, Pennsylvania and Wisconsin; the gift to the Democratic mid-term candidates; the hypocrisy of Clarence Thomas—but one: This is the first time in history that the Court has removed a constitutional right from the people after having granted it. The Court has refused to grant civil rights—Dred Scott and Korematsu come to mind—but never has it identified such a right and withdrawn it. It's as if Brown had been decided in 1898, and 50-some years later the Court said, "Nope, we got that wrong. Segregation is just fine and dandy." It's that bad.

V & Z respond: We are going to answer a question on this subject (see below), which is why we didn't address that angle.

Other Legal Observations

J.C. in Binan, Laguna, Philippines, writes: In my view, the problem with Roe v. Wade was that there is no inherent right to privacy. It is a cultural desire, founded in the famously great American love of individuality. That does not make a right to privacy and desire for privacy wrong—it makes it cultural. And, as the majority opinion pointed out, a right not present in the Constitution. Roe v. Wade should have been instead founded in the much more sustainable right in the Constitution and the preamble to the Declaration of Independence—the right to liberty. Women have a right to do what they want with their own bodies. They have liberty over their own bodies.

V & Z respond: More on this below, too.


E.R. in Irving, TX, writes: Justice Thomas, in his concurrence, writes: "the Due Process Clause at most guarantees process. It does not, as the Court's substantive due process cases suppose, forbid the government [from infringing on] certain 'fundamental' liberty interests at all, no matter what process is provided. As I have previously explained, 'substantive due process' is an oxymoron that lacks any basis in the Constitution. The resolution of this case is thus straightforward. Because the Due Process Clause does not secure any substantive rights, it does not secure a right to abortion."

He goes on to write: "[I]n future cases, we should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell."

Any freedoms secured under the Fourteenth Amendment's Due Process Clause under substantive, versus procedural, due process (and, potentially, our Ninth Amendment protection of unenumerated rights generally) are now at risk by those with Justice Thomas' mindset, which is common—and arguably prized—in conservative legal circles. What other rights are there which aren't specifically enumerated in the Constitution and for which we don't arguably have a long history and tradition? What other rights have been secured by the Court recognizing them under the Fourteenth Amendment's substantive due process principle?

I hope that those who wrap themselves in the flag and cry "Freedom!" understand how dangerous what happened today is for the future of our nation and the "freedom" they seem to hold so dear. History will note that our nation's long tradition of expanding rights changed in 2023—we eliminated a civil right for half our population. If you think this will be a unique event, keep in mind that serial killers often comment that their subsequent kills came easier after the first one.

The Court

T.J. in Tulsa, OK, writes: Just to clarify for the general public, Donald Trump did not select these recent Supreme Court judges... the Federalist Society did. They vetted and groomed them over several years. Trump simply rubber stamped them because he knew that would pander to an easy single-issue voting bloc.

Senator Sheldon Whitehouse (D-RI) has an excellent YouTube series on the subject.


P.M. in Port Angeles, WA, writes: The Supreme Court has now clearly revealed itself as a rogue branch of government. Answerable to no-one except to an impotent Congress that will not act the ensure the protection of its citizenry. It is even worse than that; SCOTUS has now become self-labeled as a theocratic-based terrorist group completely analogous and equivalent to the Talibans of Iran and Afghanistan.

The blatant hypocrisy exhibited in two rulings released this week show that the Court majority has absolutely no grounding in jurisprudence, on the one hand claiming states have no right to ensure their sovereign security via a well-regulated militia (Second Amendment wording), and on the other claiming that individual state can subjugate women in violation of the Fourteenth amendment, which guaranties equal protection of the laws. It is excruciatingly clear that the SCOTUS terrorists have in essence struck the Second and Fourteenth Amendments from the constitution. I will not accept that they have nor should they ever have that power to do so.

We must elect a Congress that will properly perform its constitutional obligations to oversee the other branches of government as is clearly spelled out therein.


K.J.O. in Brookdale, NJ, writes: The recent Supreme Court decision to overturn Roe and Casey causes some concern. As I count, the votes of Thomas, Alito and Barrett were for overturning. Breyer, Sotomayor and Kagan are for letting Roe and Casey stand. John Roberts was somewhere in between.

My concern is Gorsuch and Kavanaugh. Everybody knows both Justices assured Senators Joe Manchin (D-WV) and Susan Collins (R-ME) that Roe and Casey should stand. Somehow their names erroneously appeared with the "overturn" bloc. Obviously there is some fraud here. I believe John Roberts should direct Sidney Powell, Rudy Giuliani and Joseph diGenova to investigate this. In the mean time I will go to the Supreme Court and hold a "Stop the Steal" rally.


J.S. in New York, NY, writes: So, to sum up this week, SCOTUS decreed that life begins at conception and ends in a mass shooting.


D.A. in Brooklyn, NY, writes: The end of Roe is huge monstrosity, and follows other monstrosities: Citizens United and the gutting of the Voting Rights Act, for example.

There is a lesson here for progressives/liberals/democratic socialists: The courts are bulls**t. All judges are playing the same game that they always have played: Make the policy you want and then dress it up in your finest constitutional, legalistic finery. For far too long, progressives have actually believed in the game—believed in the magic of the Fourteenth (and other) amendments and relied very heavily on litigation. This is not to say that litigation can't play a role, but the action has to be on the streets, in the community organizations and unions, in the tedious local meetings of the Democratic Party, and above all in get-out-the-vote and the ballot box.

Politics

D.T. in San Jose, CA, writes: Midterm elections are generally seen as "a referendum on the party in power."

So, I don't see why this would hurt the Democrats in 2022... clearly they are powerless against the right wing minority.


T.J.R. in Metuchen, NJ, writes: I've had this aphorism for years about the differences between Republicans and Democrats regarding their positions on abortion, gun control and the death penalty. With Republicans, your first 9 months are free, after that you are fair game. With Democrats, the first 9 months are a bit dicey, but after that you are home free.


R.V. in Pittsburgh, PA, writes: Lyndon B. Johnson feared the loss of the South after civil rights. Well, hopefully turnabout is fair play, as any on the fence/moderate voter will never vote for a Republican again after Roe was struck down Friday. This abortion ruling should help Democratic Senate candidates in Bucks and Montgomery Counties (PA), Maricopa County (AZ), Gwinnet (GA), Washoe County (NV) and New Hampshire.


C.F. in Fort Wayne, IN, writes: I always believed that the right to an abortion was just that, a right. But, the topic never animated me. There were so many other topics that felt more pressing. It was supposed to have been settled law, after all.

But then this right was ripped away. Ripped away with sloppy legal reasoning by a Supreme Court pungent with the foul smell of politics. It has completely changed my opinion. This topic does now animate me. It has now become the single most important flag in the right of the individual and democracy itself versus the increasing fanaticism of the "political right."

It's possible the dog may have finally caught the car, but the dog never considered the car would just keep going, ultimately running over it.

We will see how this moment changes the opinions of others and how it affects that car.


J.P. in Lancaster, PA, writes: I take your oft-stated point that Republicans/conservatives have advanced their cause by getting their adherents elected in down-ballot elections. However, it did take them a while to figure out that COVID was killing their voters disproportionately and then try to do something about it.

The moves of the "Supreme Court" and conservative legislators to hamper abortion rights also demonstrate a lack of connecting the dots and long-term thinking. I'm not an expert in these matters (I'm only a biologist), but it seems to me that hampering abortion rights could adversely affect them down the road in ways they haven't really considered. Despite making abortions harder to get, some women (white and economically well-off) will still be able to obtain them, while people who are poor and/or people of color will be less likely to obtain them. This means that the relative numbers of people in the demographic groups that Republicans fear electorally will grow over time, while the number of people in the groups to whom they cater will decrease. Down the road, this will seem to exacerbate their electoral problem even more. I wonder if this fact has made it to their pre-frontal cortices yet.

Pointing the Finger

M.U. in Seattle, WA, writes: Rant from a dyed-in-the-wool Democrat: My utter disgust and contempt for this ruling can only be directed—not at the Republicans or even the Supreme Court—but purely at the feet of... the Democrats. What have the Democrats been doing or accomplishing for the past few decades? Not much! This is no surprise as the Republicans have made no secret of their plans time and time again; and time and time again they outmaneuver the Democrats out of sheer force of will, playing the long game and utter shamelessness. Republicans put lots of resources in their state party apparatus, the RSLC, and have effectively gained trifectas in many more states than they had before. The Democrats have the DLCC, which is woefully underfunded! Democrats would rather throw tens of millions of dollars to un-winnable races, and that's maddening!

Republicans beat Democrats to the punch in redistricting in 2010 and the Democrats never saw it coming. The Republicans have the Heritage Foundation that personally grooms would-be justices for them! Do the Democrats have anything that can even closely match that? No! The Democrats had a 60-seat majority for a short time in the Senate with the national trifecta and what did they do with it? Nothing! They barely passed a watered-down healthcare bill that pissed everyone off and then went of into the proverbial wilderness for years because of it! Can you see my point?! Democrats are continually feckless and then they pout and go home. Republicans, on the other hand, never go home, they go to their underground lair to plot their next move.

Donald Trump got all Democrats to the polls in 2018, just to lose seats in the House in 2020! If the Democrats can't channel some anger here and actually unabashedly stand for something here and make gains, then I will have lost all hope. I'm sick of Democrats being scared of how Republicans will portray them, and I'm sick of losing to them all the time. Enough! It's time for Democrats to finally play the long game and actually stick it out. And now it is I say to all Democrats: What are you going to do about it?


T.B. in Detroit, MI, writes: I may be living in some kind of ultra-leftist social media bubble, but the dominant theme in my Instagram feed right now (I stopped using Twitter and Facebook long ago) seems to be one of anger at the Democratic Party. I see a few different messages going around right now, but they are all essentially variants of "let's punish the Democrats for their [alleged] inaction on abortion rights by not donating to them or voting for them anymore." This is disappointing to me, because it is stupid.


D.R. in Massapequa Park, NY, writes: I said it before, and I'll say it until my dying day, there is now blood on the hands of the people responsible for the overturn of Roe v. Wade (and also the gutting of New York's gun control law) and its not the Republicans and not the justices of the Supreme Court. The blood is covering the hands of the people who were "too woke," "too pure," "too progressive," or too whatever other silly excuse to suck it up and vote for a moderate Democrat like Hillary Clinton and several other middle-of-the-road democrats. You caused this. You were warned. Hillary was far from perfect, but better than the alternative. Sometimes you can't always get what you want but half a loaf is better than no loaf and now you gave away the bakery.

The GOP ran on appointing judges that would gut gun control, gut abortion rights and—coming soon to a town near you—gutting birth control and gutting gay rights, but you didn't want to listen. You were just too progressive to "compromise your principles" so voted third party out of spite or didn't show up at all. You couldn't see the forest for the trees and demanded absolute perfection from your candidates where the GOP was more willing to except flaws, even extreme flaws like Trump had, in order to get their ultimate results. Now you have doomed us all.

I'm so glad you are woke, because soon you will be woke in Gilead.

V & Z respond: The first of two Handmaid's Tale references today.

Policy Proposals

K.M. in Denver, CO, writes: Now that girls and women will be legally required to give birth, new laws must be put in place so that boys and men will be legally required to financially provide for their children: First, legally require every American boy and man to provide a DNA test to be used to accurately identify the father of each child. Second, legally require each father to provide monthly child support, automatically garnered, up until the child's 18th birthday. Third, any boy or man that refuses or avoids DNA testing and/or financially providing for their child, will be heavily fined, jailed for 9 months, and given a legally required vasectomy. Fourth, any man that committed incest or statutory rape, as proven by DNA testing, will face a long incarceration and a legally required castration.


B.B. in Pasadena, CA, writes: An Amendment to the Constitution of the United States of America:

Section 1

All citizens have a fundamental right to privacy in all matters, both public and private.

Section 2

The term "Citizen" specifically refers to human beings and no non-human entity shall be denoted as a citizen for the purposes of this or any other law.

"Citizen" is defined by the Fourteenth Amendment. Therefore, this new amendment is specifically limited to persons who are "born" or "naturalized."

Section 2 specifically remedies the mistaken use of a "headnote" in a Supreme Court case that extended rights and privileges under the Constitution to corporations.

Now, how can we get this enacted?


J.S. in The Hague, Netherlands, writes: How about instead of leaving it up to the states, we can make it more narrow? Each county can decide. Maybe even each city. Perhaps... each individual.

A Crime Against Humanity

R.G.N. in Seattle, WA, writes: In the Colonial era in America, abortions were legal if they were performed prior to quickening. From 1776 until the mid-1800s, abortion was viewed as socially unacceptable; however, abortions were not illegal in most states. Interestingly, from the colonial period to the end of the Civil War, slaves were subject to the rules of their owners, and the owners refused to allow their slaves to terminate pregnancies. Throughout the colonial period and during the early years of the republic, the abortion situation for slave women was different than for other women. Slaves were subject to the rules of their owners, and the owners refused to allow their slaves to terminate pregnancies. One has to wonder about what that says about the current era.


J.W. in Seattle, WA, writes: Roe v. Wade was the Missouri Compromise of our time. And just like the original, the slave power did not accept the compromise and worked for years to subvert it.

So now we have the Dred Scott decision of our time, with the amazing irony of a Black justice saying "women have no rights that need to be respected" (paraphrase). And just like the original, the free states will ignore the ruling, passing pro-choice legislation, which the slave states will use as an excuse for treason.


G.A. in Berkeley, CA, writes: When a state prohibits you from controlling your own body, you have no freedom. In its misogynistic Dobbs decision repealing the constitutional protection for reproductive rights, the activist, right-wing, religious Republican majority of the Supreme Court (including two male justices who were accused of abusing women) has imposed on the country a new system of slave states and free states. Dobbs will inflict on many women and girls in the slave states mandatory pregnancy, with attendant medical risks, and the birth of unwanted children. Until this atrocious decision can be undone, what's needed is an underground railroad to the free states in the north.


C.Z. in Sacramento, CA, writes: Forced labor is slavery, so congratulations to the Supreme Court for enslaving girls and women in the U.S. With one fell swoop, SCOTUS has set back women's rights in the U.S. not just 50 years, but 150 years. I guess it's time for all of us ladies to don our Handmaid's Tale uniforms. In addition to enslaving American girls and women, the SCOTUS decision flies in the face of simple biology, as it has now decreed that a parasite has more rights than its female host.

Since poor women of color will be the most likely group to be forced to have unwanted children, it will be interesting to see the reaction when the white supremacists figure out that this ruling will hasten the day when whites will become a minority race in the U.S.

It seems to me that girls and women who are forced by their state to go through pregnancy and childbirth against their will, should be able to sue that state for their pain and suffering and loss of income.


C.L. in Durham, England, UK, writes: The Geneva Convention describes forced pregnancy as a form of genocide.

Consequences

C.W. in Carlsbad, CA, writes: With the latest Supreme Court ruling, we can no longer call ourselves the United States. It should be obvious why. But as anti-abortion states move to limit the interstate movement of their citizens, others (like California) will limit trade in response. Unless this can be rectified quickly, the squabbles will interfere with the economy and national politics to a level we haven't seen in almost 200 years.


R.S. in Cupertino, CA, writes: As much as the anti-abortion supporters are rejoicing and the pro-abortion supporters are gnashing their teeth, I think the number of abortions in the US.. will largely stay the same.

I wonder when Dobbs will be overruled, but I expect it will be less than 50 years.

I also expect that no Supreme Court nominee will ever be approved by the Senate which is controlled by the party opposite the president's, regardless of when the vacancy occurs, unless a major law change is passed, such as term limits on Supreme Court justices. The controlling party of the Senate will be content to let the number of justices go down for a year or more rather than let the other party get another justice.


A.S. in Hawkins, IN, writes: Here's another point that I don't see talked about much: Forcing women to carry pregnancies to term means sentencing them to a shorter life.

For example, 2-10% of women get diabetes from their pregnancy ("gestational diabetes"), and 50% of those develop into life-long Type 2 diabetes. Diabetes shortens lifespans, and along the way can lead to blindness, loss of limbs, and contribute to dementia. High blood pressure during pregnancy is not uncommon, and women can suffer strokes or other cardiac events during childbirth. Women with congenital heart issues, such as heart murmurs, are similarly at increased risk of cardiac issues. And pregnancy leaves many women overweight, which also has long-term impacts on lifespan and quality of life.

Those are just a few basic examples.

Adding all of that up, carrying pregnancy to term shortens women's average lifespan. So let's just be clear that the "life" in "pro-life" doesn't include women's lives.


A.M. in Sterling, VA, writes: The left really needs to continually point out that there is no "pro-life" side in the abortion debate.

You either accept the "death" of the unborn to protect the life, health and bodily self-autonomy of women. Or you accept the death of women to protect the unborn. Because, let's face it, this so-called "pro-life" Supreme Court decision will directly lead to the deaths of many women.


C.R. in Pelham, AL, writes: You hit all the issues yesterday: the Court's hypocrisy, the national (and international) embarrassment, and the likely political consequences. Joe Biden got 47% in Texas—how many more suburban moms in Round Rock or moderates in Plano (not to mention Uvalde) before that hits 50%? Julián Castro could probably carry it today! Then no more stolen seats, drunken frat boy morons or brainwashed Catholic-school-girl theocrats on the court again. And no more narcissistic insurrectionists to nominate them. Ever!

But we may have to flee Alabama in the interim. I firmly believe that we should "be the change you want to see in the world," but I can't ask my daughters to pay this price!


J.E. in New York, NY, writes: The Dobbs decision will gladden the hearts of rapists in many states. Here is why:

Missouri has no exceptions for rape or incest, and Texas doesn't make that distinction in its "bounty" law either—at least, not when reporting someone. This means that anyone who can get pregnant and is raped will have every reason to not report it, since they will then be monitored to see if they are pregnant and might want to not carry their rapists' baby. Further, rapists can claim parental rights in 31 states. This basically means that if one wants to rape women, one can do so with near-impunity.

This is even more true of children raped by trusted figures or their relatives. A scared teenager is not going to tell anyone if they think they will be shamed for not wanting to carry their rapists' child, and worse yet, subjected to invasive monitoring, and possibly reported by counselors or psychologists of the very people who are supposed to help.

If you are "pro-life" you are pro-rape, full stop. I do not want to hear that you didn't want this consequence—you got what you wished for. You knew the possible ramifications.

Anger and Sadness

C.C. in Saint Paul, MN, writes: Your readership is supposedly mostly male. I want them all, even those that are allies on the topic of reproductive rights, to understand this ruling hurts. Not metaphorically, physically. My stomach, head and chest hurt. I am shaking. I feel like I'm going to vomit. I feel like I might suffocate. A group of six people appointed and confirmed by an overwhelmingly male legislative body has told me they do not consider my body to be legally my own. In one ruling they have taken so much from me. Their justification is it is not "deeply rooted in our history and tradition," a horrifying argument for anyone whose rights haven't been around for centuries.

When I was a child and a budding feminist, I thought I would see equality in my lifetime. When I got a bit older, I readjusted my expectations to getting closer to equality in my lifetime. Now we are backsliding. And make no mistake, women are going to suffer and die. Please by kind to anyone who feels like I do.


F.H. in St Paul, MN, writes: I created this Friday with anger in my heart and tears in my eyes.

Clarence Thomas' hand dropping a pubic hair on the Constitution

The End of Roe: Reader Questions

And now, some answers to Roe-related questions:

Impact

B.L. in Henderson, NV, asks: With the death of Roe, I am wondering about fallout beyond the cruelty to women. Do you think there will be a "brain drain" as educated workers with the financial ability flee to blue states? Will there be a similar flight of doctors, nurses and other medical professionals to states where they will not face imprisonment for providing health care to women? And what about medical malpractice insurance?

V & Z answer: We addressed this a bit yesterday; we think that is very likely. People will leave red states, or avoid moving to them, both for practical reasons and for philosophical ones.

One of the big reasons that people relocate to red states is cheaper housing/cost of living. It is entirely plausible that certain blue states could fulfill that need, instead. For example, Albuquerque, NM, was once a hub of technological innovation, and it could be again. And a search of Zillow reveals that the city has nearly 1,000 houses for sale for under $300,000, and several dozen under $200,000. And that doesn't include condos, apartments, etc.


F.S. in Cologne, Germany, asks: You wrote: "Ultimately, according to the Guttmacher Institute, there are 22 states where abortion will be illegal in short order, and another four that are nearly certain to enact a ban now that they can do so." Among these states are the important swing states of Arizona, Georgia, Florida, Wisconsin and Michigan. Is it possible that a huge number Democrats, especially Democratic women, will now leave these states and go to blue states? If yes, this could mean that the Republican candidate will win these 5 swing states in the next presidential election comfortably, which would all but guarantee a Republican win in the next presidential election.

V & Z answer: Our guess is that some people in very red states, like C.R. in Pelham above, will indeed leave for bluer pastures. We would also guess that people who are planning a move anyhow will think twice about red states.

However, people don't generally want to pull up stakes—acquire new housing, change jobs, pull the kids out of school—unless they have to. In swingy states, we would imagine that folks who are disgusted by this week's events are more likely to stay and fight and try to flip their Senate seats, governor's mansion, etc. That could mean donating money, knocking on doors, phone-banking, encouraging friends to vote, etc.

That said, these are just guesses. If readers in red or purple states would care to write in with their thoughts, we'd certainly run a bunch of them.


E.W. in Silver Spring, MD, asks: The U.S. is now breaking through norms that are likely going to be very difficult to put back in place, and may well lead to an unwinding of other rights as some SOCTUS appointees have happily written into their opinions this week. So, I would like to ask the resident historian: At what point does a bi-national male couple (American-born Jew, and an Indian-born Hindu) with an adopted (American-born white daughter) leave the U.S. to hold our family together? What signs might we look for that it is getting to be too late for us?

V & Z answer: There have been places and times where a minority was persecuted a little, then a bit more, then a bit more, and then found themselves as the targets of genocide or other unfettered violence. Jews in 1930s Europe are the obvious example; millions Jews who tried to ride out the storm of Nazism ended up in concentration camps.

That is not going to happen in 21st century America. In the 1930s, the Jews were a small minority. By contrast, the people who oppose Trumpism, and what the Supreme Court did this week, and other forms of far-right muscle-flexing, are in the majority. Recall, for example, that there was no Japanese internment in Hawaii, because it was impractical for the 45% of the population that was NOT of Japanese descent to imprison the 55% that was of Japanese descent. In addition, people today have the lesson of the Nazis (and Mussolini, and the Armenian genocide, and others) to learn from.

So, all you really have to concern yourself with is whether you feel your quality of life has degraded to the point that you would be better off elsewhere. It is not probable that will happen in Maryland, a very blue state that is likely to join the other blue states in doing everything possible to undermine the Supreme Court's rulings.


R.S. in Lebanon, CT, asks: In states that ban abortion, how will universities deal with pregnant students? University residences are designed for students alone. They are not built to accommodate families. I think this decision is going to force a lot of young women out of the education system.

V & Z answer: This is a real problem, and universities are already struggling with what to do about it. There have been articles all over the place about it; the Chronicle of Higher Education alone must have had a dozen pieces this week.

The first thing the universities in red states will have to decide is whether to do anything at all. They could be accused of bias against conservative students if they take a pro-choice posture. The universities could also risk legal action, loss of funding, etc. if state government officials believe that university officials are subverting the law.

If the universities do decide to do something, then they'll have to decide exactly what that might be. Most likely is that they will somehow make it easier for students to acquire abortifacient pills. It's plausible that some universities could also facilitate travel to out-of-state clinics. For example, Washington University in St. Louis is about a 20 minute drive from the Hope Clinic for Women in Granite, IL; a shuttle or a taxi service of some sort would not be prohibitively expensive. It's also plausible a university might offer some sort of grants or insurance coverage for students who need to travel longer distances.

The potential consequences here, just in terms of the educational mission of the universities, are significant. Certainly, many young women will avoid enrollment at red-state universities. That won't affect elite universities, on the whole; of Forbes' Top 50 U.S. universities, only half a dozen are in states that currently, or soon will, prohibit abortion. Perhaps that's not a coincidence. However, it will affect universities lower on the list, particularly state schools.

For those young women who enroll and end up pregnant, universities are at risk of Title IX lawsuits if they don't provide proper accommodations. And even if proper accommodations are given, it's a (not at all surprising) fact that pregnant students take longer to graduate and drop out at higher rates.

There will also be other consequences that might not immediately occur when considering the subject. To give one example, most aspiring doctors—particularly would-be OB/GYNs—want to learn how to perform abortions safely and also how to give proper care to women who suffer miscarriages. If a university can't offer that education, then would-be med students will look elsewhere.


M.G. in Boulder, CO, asks: No Supreme Court justice has ever been removed from office. What are the chances that will change in the next couple of years? Or do you think the Court will become uncomfortable enough that a justice might resign? Any likely candidates?

V & Z answer: It takes two-thirds of the Senate to remove a justice under current rules. There is no chance that the Republicans agree to remove one of the conservatives and there's no chance that the Democrats agree to remove one of the liberals.

As to a resignation, Clarence Thomas is getting up there in years, has achieved much of what he wanted to on the bench, and is enmeshed in controversy. He might just resign... if he was persuaded that he'd be replaced by a conservative. But with a Democratic president and Senate? No way.

It is at least possible that, as a form of protest, the other two liberals join Breyer in retiring. That would make a powerful statement, but it is unlikely that Elena Kagan and Sonia Sotomayor are interested in giving up their prestigious positions, or in yielding their (admittedly minority) voice. Someone sitting on the Court, even if they are generally outvoted, has considerably more power to shape American jurisprudence than someone not on the Court. Remember, not every decision is 6-3.

We would guess the likeliest resignation is... Chief Justice John Roberts. He may have health issues (he's had seizures), and if he's truly an institutionalist, he might conclude that a liberal chief justice will be needed in order to repair the Court's reputation. Again, this is not probable—it's not easy to vacate the pinnacle of your profession if you don't have to. However, if you told us that you had inside information that a justice was planning to resign next week, Roberts would be our guess.

Civics and Law

J.M. in Seattle, WA, asks: When I read a lot of the reactions, I see a broad conflation of "I don't like the results of this decision" with "I don't like the Supreme Court" and I think that points to a core problem. I am pro-choice and pro-gay marriage. But I have a hard time understanding how we can cheer Obergefell (gay marriage made legal nationwide) but hate Dobbs v. Jackson Women's Health Organization. We feel differently about the results of the decisions, but the Court seems to be working the same in both cases: judges making decisions based upon their political inclinations. Political inclinations which were significant reasons they were appointed in the first place.

V & Z answer: There are two ways to answer this question, and we'll give you both of them. The first answer is that Obergefell, which actually got the votes of four liberals and Anthony Kennedy (a Reagan appointee and a registered Republican), was based on existing precedent. The majority opinion was a coherent legal argument, rooted in evidence, and deferential to stare decisis. Many folks might not have liked the finding, but the actual legal writing is solid. By comparison, Dobbs ran roughshod over stare decisis and invented new and novel legal ideas out of whole cloth. It's also got an exceedingly aggressive and dismissive tone. If a historian 100 years from now was to read both decisions, they would view them as very different sorts of documents, and would much more clearly perceive the political activism baked into Dobbs (and into Clarence Thomas' concurrence).

The second answer is that the Supreme Court is no longer a politically neutral entity. Those who have followed the Court's history may suggest it never was. In any event, just as you have to win a majority in Congress to get your political program enacted, it may be time for the Democrats to conclude that you have to control a majority of the Court to keep your political program from being struck down. Certainly, the Republicans reached that conclusion many years ago.


M.S. in Cupertino, CA, asks: Does the Supreme Court decision in Roe v. Wade prevent the Congress from passing a law that legalizes, perhaps with some constraints, abortion services nationwide?

V & Z answer: No. The Tenth Amendment to the Constitution decrees that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." So, the central question in Roe v. Wade was whether or not the Constitution protects abortion rights, or whether that is a question reserved to the states. And back then, the Court found that the Constitution, specifically the Fourteenth Amendment, does implicitly protect abortion rights. On Friday, the Court decided that it does not, and thus abortion rights are thus a question left to the states.

If Congress was to pass a law codifying abortion rights, consistent with its Article I right to adopt legislation, then the federal government would be explicitly protecting abortion rights, and the terms of the Tenth Amendment would once again take that question out of the hands of the states.


J.H. in Racine, asks: If Congress codifies abortion rights, won't someone sue and the Supreme Court will just overturn it?

V & Z answer: Undoubtedly, every red-state AG in the land would sue the moment that such a law was passed. Under the reasoning that the Court gave in its decision on Friday, those AGs should lose their lawsuits summarily, since Article I and the Tenth Amendment (see above) are crystal clear. However, this Court has already shown a remarkable ability to stand on its head to get the results it wants. And so, we have no idea what would actually happen should that legislation, and those lawsuits, come to pass.


D.V. from Columbus, OH, asks: My memory is somewhat fuzzy, but I believe I recall you guys discussing a list of legal angles that Democrats and progressive groups or thinkers had been theorizing and considering in preparation for the day that Roe ever got overturned. I remember you saying something to the effect of them having never thought about actively pursuing them since the right to an abortion was already covered, but now that Dobbs has been issued, are you able to list/rank the most plausible legal angles towards securing (or rather, re-securing) the right to an abortion through litigation rather than codifying through legislation?

V & Z answer: We don't recall having done an entire item on that subject, but we do recall having made mention of it in the context of larger items.

Anyhow, Roe itself was based on a somewhat creative reading of the Fourteenth Amendment, namely that the Amendment implies the right to privacy (per the Court's 1965 ruling in Griswold v. Connecticut), and that abortion rights are a privacy issue. This reading is not entirely unreasonable, and it got the votes of seven of the nine justices, but it's shaky enough that even pro-choice scholars have suggested that majority-opinion author Harry Blackmun should have done better.

Now that this view of the Fourteenth Amendment has apparently been gutted, the strongest legal argument would be one based on the Thirteenth Amendment, that forcing a woman to carry a fetus to term is a form of involuntary servitude. You can read a more thorough discussion of that notion here.

The next best argument is that forcing women to continue pregnancies is discriminatory, against half the population in general, and against poor women and women of color in particular, and so is a violation of the Equal Protection Clause of the Fourteenth Amendment.

A third argument is also based on the Fourteenth Amendment, but also on earlier passages in the Constitution. Several times, in the main body of the document, the framers refer to "persons," and use that to mean "people who have been born." For example, per the terms of Article I, the census only counts "persons," and not would-be persons in the womb.

In the Fourteenth Amendment, "equal protection of the laws" is extended to "all persons born or naturalized in the United States and subject to the jurisdiction thereof." The fellows who wrote that Amendment were well aware of the meaning of "persons" in this context. It is also worth noting that abortions were more common in 1868 than they are now, and so an "originalist" interpretation of the Constitution would support this argument for keeping abortion legal. That is to say, the men who wrote the Fourteenth Amendment were well aware of fetuses and abortions, and yet chose their words so as to withhold legal protection from the unborn.

There are many other approaches that might be taken, but these three are the most likely, if and when pro-choice forces decide to take this back to the courts.


D.E. in Austin TX, asks: The notion of not having to bear the rapist's baby being now no longer constitutionally protected is tough enough to swallow but what about the other corner cases such as where a mother's life is at risk? Isn't this something that one can say gives one a "constitutional" right to abortion? Is it decided that now that the states can force a woman to die because she is pregnant?

Even if it's a 10% risk (and whatever calculation they use to come out with figure is not going to be legislative-able) one would think there is a right to keep oneself alive somewhere in the Constitution.

V & Z answer: Nobody, even Clarence Thomas, would disagree that the Constitution (and the Declaration of Independence) support the right to life, liberty, and the pursuit of happiness. The critical question is at what point a fetus becomes "a life" and so is equally entitled to life, liberty, and the pursuit of happiness. The current Court, and the anti-abortion movement, take the view that a fetus becomes a life very quickly, perhaps even at the point of conception, and so gains the right to life very quickly. As they see it, if a procedure is 100% guaranteed to end a fetus' life, while foregoing that procedure is only 2% or 5% or 10% to end the woman's life, then the balance weighs in favor of the fetus.


K.H. in Maryville, TN, asks: The Nashville D.A., Glenn R. Funk, has released a statement that he won't prosecute abortion cases:

As long as I am the elected District Attorney for the 20th Judicial District, I will not prosecute any woman who chooses to have a medical procedure to terminate a pregnancy or any medical doctor who performs this procedure at the request of their patient.

Will he be able to do this without losing his job? I'm guessing that other blue D.A.s in red states will follow suit?

V & Z answer: Every state has some means of impeaching or otherwise removing district attorneys who are problematic. After all, you wouldn't want to have someone who is accepting bribes, or who is a hopeless drug addict, or who has been convicted of rape be allowed to staying on the job.

Refusing to enforce a particular law is generally an impeachable offense, but it can be hard to prove. Tennessee Republicans foresaw this problem, and so in October of last year the legislature passed a bill that says if a D.A. "peremptorily and categorically" refuses to prosecute a particular criminal offense, then the state AG (Republican Herbert H. Slatery III) can ask a court to appoint a D.A. pro tempore to handle those cases. Many other red states have passed similar laws.

So, Funk probably won't lose his job, but his refusal to prosecute will only be a temporary annoyance for the anti-abortion forces.


S.B. in Bend River, OH, asks: I read about state government officials declaring that they will implement laws punishing women who travel out of state to access abortion services. On what legal basis is this possible? Only the federal government can regulate interstate commerce. There is no such thing as state citizenship. I wonder if the Supreme Court would find some kind of justification to support these laws if enacted. And so much for the promises of the "pro-life" movement that women would not be criminalized.

V & Z answer: The likely angle would be that the intent to acquire an abortion originated within the state, and that therefore a portion of the crime was committed within the state, even if the abortion itself was acquired in a different state. Whether this argument would withstand legal scrutiny is an excellent question, but note that it would be mostly conservative judges (e.g., the Fifth Circuit) who would be evaluating it.


S.K. in Sunnyvale, CA, asks: Could you help me understand this? Incest is almost always paired with rape as a (potential) exception to abortion bans, but I don't understand why. If the act was non-consensual, then it's also rape, and would qualify under that category; but if it was a consensual act, then it's disgusting, but I don't understand why disgust alone would merit an exception. (And if the inbreeding has led to developmental abnormalities, well, in my opinion that should also have its own category of exception, whether or not it was caused by incest.)

Note that I am firmly pro-choice; I'm just trying to understand the thinking of those who would add a rape/incest exception (as opposed to just a rape exception) to their otherwise-total abortion ban.

V & Z answer: Anti-incest statutes were first created in an era where the perpetrators were usually fathers and the victims were daughters, and it was presumed that consent likely wasn't given. Keep in mind that statutory rape, as a crime, largely didn't exist until the 20th century. The same is true of the birth certificates that would be needed to prove a girl was underage.

That said, while incest and rape are lumped together as exceptions that most people would agree on, they are not the same and are not always treated the same. Most states and countries that punish rape more harshly than they punish incest. And there are a few countries, such as Argentina, that allow abortions in case of rape but not in case of incest.

Politics

M.M. in Oro Valley, AZ, asks: You wrote that "about 85% of Americans would like to be legal in some circumstances" with other levels of support for various limits. Since many Americans live in the progressive coastal regions of the U.S., does that leave the center of the country highly anti-abortion? Is there any data that provides details of support for abortion down to the state level or even better to congressional district level?

V & Z answer: While anti-abortion sentiment may be more prevalent in the central states than in the coastal states, your basic assumption is incorrect. There are some very conservative parts of California and New York, for example, and some very liberal parts of Louisiana and Texas.

We don't know of anyone who has CD-level data, but state-level data can be had, and Pew Research in particular has been collecting that data for a while. According to them, 57% of Californians, 64% of New Yorkers and 51% of Pennsylvanians, to take three examples, would like abortion to be legal in all or most cases. That compares to 49% of Kansans, 52% of Iowans, 45% of Missourians, 56% of Montanans, 48% of Ohioans and 47% of Utahns. The places where it drops into the 30s are Southern states, like Mississippi (36%), Kentucky (36%), Alabama (37%) and Louisiana (39%). But those are the most extreme cases.


S.E. in Ha'iku, HI, asks: Coming from California, where a signature drive can put an initiative on the ballot, I am wondering if any red states (and for that matter other blue states) have similar avenues. For example, say there was an initiative process in Texas (maybe there is, I don't know), couldn't they gather enough signatures to put an initiative on the ballot legalizing abortion in the state? This may not produce the desired result but it sure would get people out to vote.

V & Z answer: Using a ballot initiative to drive people to the polls is a potentially Faustian bargain. You better make sure it motivates your voters way more than it motivates the other party's voters.

In any event, ballot initiatives are available in 26 states, of which either four or five are Southern, depending on your definition: Oklahoma, Arkansas, Mississippi, Florida and Missouri (the maybe-Southern state). This is due, in part, to the red states' tradition of concentrating political power in a few people (and not in the hands of the general public). However, it's mostly about how old the states are. Ballot initiatives were kind of a Populist and a Progressive thing, so they tend to be an option in newer states, particularly Western states where Populists/Progressives were strong. Consequently, the blue states of New England largely don't have ballot initiatives or referenda, whereas all but five states west of the Mississippi have them (the exceptions are Texas, Kansas, Iowa, Louisiana and Minnesota, all of which achieved statehood before the Papulists and Progressives existed).

You can see a map here, if you wish.


D.R. in Charlotte, NC, asks: You wrote: "One can't help but notice that tolerance for some of the most dysfunctional elements of the democracy, like the filibuster, the Supreme Court, and gerrymandering, is growing thin. It would not be too surprising if the dam breaks in the next several years, especially given that there is a lot in common between the United States of 2022 and the United States of 1900 (i.e., the precipice of the Progressive Era)."

Would you expound on this especially what could happen should the dam break?

V & Z answer: Well, probably the three most transformative legislative programs in American history were those of the Roosevelts, Franklin and Theodore, and of Lyndon B. Johnson. TR had the benefit of bipartisanship, since there were Progressive elements in both political parties. FDR and LBJ had the benefit of huge majorities in Congress for much of their time in office.

The modern-day Democratic Party is not going to secure bipartisan cooperation for much of anything, nor are they going to have massive majorities in both chambers of Congress anytime soon. However, the one thing the blue team does have today, which we've written about, is an unusually high level of party discipline. This is not terribly surprising. FDR and LBJ had to deal with a large number of Southern Democrats who were barely Democrats. On the other hand, the sorting that has gone on in the last 10 years has meant that most Democratic officeholders at the federal level are on board with huge portions of the Party's platform.

And so, the dam "breaking" in 2022 or 2024 or 2026 wouldn't look exactly like it did back in 1900 or 1905. If it were to come to pass, the Democrats would have to gain control of the House, putting in charge a Speaker who is as good at herding cats as Nancy Pelosi (D-CA) is. They would have to have 50 reliable votes in the Senate, all of whom would support killing the filibuster. They would then have to pass a raft of legislation, including making fundamental changes to the Supreme Court. If the Party can get the trifecta again, with 50 senators who are not Joe Manchin and Sen. Kyrsten Sinema (D-AZ), then the rest is very plausible.

History

F.I. in Philadelphia, PA, asks: Have there been other instances in American history where established civil rights have been taken away by the SCOTUS? If so, were there any electoral repercussions?

V & Z answer: As you will see in the letter from R.E.M. in Brooklyn above, not really.

That said, if you squint, you can maybe find one or two that kinda clear the bar. Most famously, Lochner v. New York (1905) struck down laws that limited how many hours someone could work per week on the basis that they interfered with workers' right of contract. Then, in West Coast Hotel Company vs. Parrish (1937) and other New Deal-era cases, the Court ruled that maximum-hours laws are acceptable. So, those 1930s cases technically took away workers' right of contract.

Of course, to provide you with this example, we had to bend over backwards, and we had to invoke one of the most notoriously stinky rulings in SCOTUS history. So, probably best to go with R.E.M.'s take that there's really never been anything like this before.


R.H.D. in Webster, NY, asks: When Roe v. Wade was decided in 1973, how did President Nixon react to the news?

V & Z answer: We actually know exactly what he thought because he was recorded discussing the matter in the White House, by the same tape recorders that eventually did him in. In other words, he was having a conversation that was off the record and that would never become public, as far as he knew, and so he was speaking frankly.

Keeping in mind that abortion was not that much of a political issue back in 1973, and definitely was not a Republicans vs. Democrats issue at that point, Nixon's response was pretty typical of a conservative midcentury American male. He was somewhat concerned that easier access to abortion would encourage sexual permissiveness. At the same time, he recognized that abortions were necessary in some cases. And in what specific instances did he see a need? First, in cases of rape. Second, in cases "when you have a Black and a white."


R.C. in Des Moines, IA, asks: Can you recommend a good book examining the history of the Supreme Court?

V & Z answer: The standard work is Robert G. McCloskey's The American Supreme Court. It was first published in 1974, by which time McCloskey was, sorry to say, long dead (he died in 1969). But the writing and analysis were so good that it was warmly received, and has been updated several times by other scholars. The latest edition, the sixth, came out in 2016 and covers the key cases of the George W. Bush and Barack Obama years. Undoubtedly, work on the seventh edition will commence post haste.

If you're looking for something more along the lines of a case study, then consider Richard Kluger's Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality. It only focuses on that one case, so it's not anything close to a comprehensive history of the Court. But it's also a page-turner, and it gives an excellent sense of how the Court operates behind the scenes.


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