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Roe v Wade Is Just the Beginning for This Supreme Court

14 Jul 2022
By Seamus Dove
Protest outside the U.S. Supreme Court in 2018.
Source: Geoff Livingston, Flickr,

The US Supreme Court’s decision to overturn Roe v Wade captured international headlines. But the court’s other recent decisions also deserve attention.

On 2 May 2022, the world panicked when Politico released a draft judgment of the US Supreme Court, purporting to remove any constitutional right to an abortion in the United States. Though the leak of such a document is unprecedented, this was largely overshadowed by its contents. Almost two months later, on 24 June 2022, the Supreme Court handed down its judgment in Dobbs v Jackson Women’s Health Organization, which confirmed the worst.

Roe v Wade no longer determines the law of the land in the United States, and the right to abortion is no longer constitutionally protected. America did not reach this point overnight. Dobbs is just one piece of a broader picture that has seen access to abortion restricted ever tighter. Now, President Joe Biden must find a way to reform the courts or risk an avalanche of radical conservative precedent.

Understanding the US Supreme Court

The US Supreme Court was created by Article 3 of the US Constitution and has nine appointed members. Justices are nominated by the president, confirmed by the Senate, and appointed for life. The court has appellate jurisdiction, meaning it reviews cases that have already been decided in lower courts. Though the court can rule on all sorts of legal issues, most of its cases revolve around constitutional review. That is, the court determines whether state and federal laws align with the US Constitution, and where they do not, overturns them.

Unlike Australia and other jurisdictions, US presidents consider the political leanings of judges when deciding whether to appoint them. Currently, the Supreme Court is made up of six conservative judges – John Roberts, Samuel Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – and only three liberals – Sonia Sotomayor, Elena Kagan, and the Biden-appointed Ketanji Brown Jackson. Justices are only entitled to be replaced upon retirement or death. Presidents can therefore have an extremely long-reaching policy impact when judges are appointed at a fairly junior age.

Understanding Roe and Dobbs

Roe v Wade was decided by the Supreme Court in 1973. The case involved a challenge to Texas’ extremely restrictive abortion laws. By a vote of 7-2, the court held that the “Due Process Clause” of the Fourteenth Amendment to the US Constitution conferred a right to privacy, and that such a right here protected a woman’s right to an abortion.

This wasn’t a novel view of the law. Brown v Board of Education (1952), which deemed segregated schools to be unconstitutional, Loving v Virginia (1967), which ruled that laws banning interracial marriages were unconstitutional, and later, Obergefell v Hodges (2015), which ruled that blocking same-sex marriage was unconstitutional, were all centred around the Fourteenth Amendment and the right to privacy. The Supreme Court in Planned Parenthood v Casey (1992) confirmed that Roe was good law, but watered down the right to an abortion by downgrading the judicial test from one of “strict scrutiny” to “undue burden.” This empowered individual states to limit the right to an abortion under some circumstances.

Dobbs was triggered by a 2018 Mississippi law that banned abortions after 15 weeks of pregnancy. The six conservative judges on the court ruled in favour of Mississippi, and a majority of five overturned Roe and Casey. Chief Justice John Roberts voted to retain Roe. The majority judgment was written by Samuel Alito, who suggested that “Roe was egregiously wrong from the start.” The Fourteenth Amendment, Alito argued, did not extend to protect a right to an abortion, and such view could not be implicitly read into the Constitution.

This decision was not just problematic, it was bold. Roe was established precedent and had been confirmed repeatedly by the Supreme Court. Many of the conservative judges agreed at their confirmation hearings that Roe had a firm legal foundation, statements that were arguably integral to the senate confirming their appointment. Bolder still was Justice Clarence Thomas’ opinion. While Alito argued only for overturning Roe, Thomas suggested that the court should take a broader view and substantially wind back Fourteenth Amendment protections. If Thomas’ ruling were applied, it could have grave consequences for a host of individual rights.

Other Controversial Rulings

The ruling in Dobbs is, of course, heartbreaking. But Dobbs is just one of several recent decisions that warrant scrutiny at best, or panic at worst.

On 23 June 2022, the court released its ruling in New York Rifle and Pistol Association v Bruen, striking down the Sullivan Act, a New York law that required citizens to have “proper cause” before carrying a concealed firearm. The court overturned the Sullivan Act, a piece of NY legislation that was over a century old.

On 30 June, the Court handed down its decision in West Virginia v Environmental Protection Agency (EPA), that crippled the powers of the Environmental Protection Agency. Like Dobbs, this case will have an enormous effect. The ruling will not just curtail the critical work of the EPA, but that of all sorts of bureaucratic bodies with delegated power.

Like Dobbs, both cases were decided 6-3, split across ideological lines, overturned long-established precedent, and will have a tangible and harmful effect on American lives.

Perhaps most troublingly, the Supreme Court has indicated that it will soon hear Moore v Harper. That case has the potential to give complete control over federal elections to individual state legislatures. In short, states could rampantly gerrymander and introduce obstacles like voter identification laws with near impunity. Given the conservative nature of the court, and its repeated desire to allocate power to the states, such a verdict would not be unexpected. Let’s not mince words —American democracy is in real danger.

Room For Hope?

To put it bluntly, things do not look good. Kavanaugh, Gorsuch, and Barrett, Trump’s three appointees, are all less than 60 years old and will likely sit on the court for decades to come. There is also little hope from within the court. The 6-3 majority means that even where a single conservative justice takes a more progressive view, which historically happens somewhat regularly, it will not shift the balance.

But this court has not been completely separated on ideological grounds. Biden v Texas, a recent case determining whether Biden could suspend a Texas anti-immigration law, was decided 5-4, with Kavanaugh and Roberts joining the three liberal justices to rule in Biden’s favour. Another recent decision, Torres v Texas Department of Public Safety, again saw Kavanaugh and Roberts vote with the liberals. Concepcion v United States saw Gorsuch and Clarence Thomas swing towards the more progressive judges. All these cases were handed down in June this year and indicate that perhaps these conservative judges may not form an impenetrable bloc like we first thought.

If Biden does choose to pursue reform, he will have his work cut out for him. Introducing term limits or an age limit on judges would require an amendment to the US Constitution, which would be extremely difficult. While Congress could expand the court via a routine congressional vote, it is unclear there is support within the party for such an extreme measure. Moreover, the filibuster remains a strong Republican tool to block votes indefinitely. If Biden desires this option, he may have to act fast. The midterm elections loom in November, and it is not looking good for the Democrats.

Though Dobbs is heartbreaking, we cannot let it overshadow the other damage being meted out by this court. With Republicans poised to win back control of Congress, and a potential Trump 2024 campaign on the horizon, the coming days look bleak. Roe being overturned was a tragedy, but it may just be the beginning.

Seamus Dove is an editor of Australian Outlook. He holds degrees in Law and International Relations and is currently undertaking a Master’s in Strategic Studies at the ANU.

This article is published under a Creative Commons Licence and may be republished with attribution.