Joanna Erdman is an associate professor of law and the MacBain Chair in Health Law and Policy at the Schulich School of Law at Dalhousie University.
On Friday, the U.S. Supreme Court overruled Roe v. Wade. There is no doubt. No ambiguity. No legal evasion. The U.S. Constitution does not confer a right to abortion. The authority to regulate and even to prohibit abortion rests with the citizens of each state.
And so, states across America have banned or severely restricted abortion with trigger laws, which are designed to come into effect upon the court’s ruling. In yet more states, pre-Roe abortion laws that have remained on the books may come back into effect. And more laws will follow. So too will clinic closings. According to research by Advancing New Standards in Reproductive Health at the University of California, San Francisco, over a quarter of abortion clinics in the U.S., more than 200 clinics, will close. Mere hours after the ruling, workers left their clinics and locked the doors indefinitely.
In the coming days and weeks, people will desperately seek information and care against the ticking clock of their pregnancies, and many will experience extraordinary hardship in their efforts, largely those already burdened by American poverty and racism. Beyond the unwavering commitment and financial resources necessary to sustain these efforts, including interstate travel, there is the fear and humiliation of hunting for health care. There is the cruelty of the delays and denials they will face. There are the violent and exploitative practices which abortion criminalization sustains when people are forced into secrecy and silence, and when these laws become the basis for state intimidation and harassment, inviting all manner of interference and indignity into the lives of people.
In the judgment, the three dissenting Supreme Court justices chastised their colleagues not to try to hide from the expansive effects of their judgment. These justices go on to catalogue the coming state laws that will criminalize every conceivable act of abortion: to provide or to have an abortion, to assist another in doing so, to speak of it and eventually even to think of it. State laws need not directly outlaw thinking about abortion. It is simply that holding abortion in your heart and mind will itself become so burdensome that the very idea of its freedom soon disappears.
Indeed, Justice Samuel Alito, who delivered the opinion of the court, writes of abortion with such disdain. In the overturning of the constitutional right to abortion, there is a mockery of it. Despite high-minded claims to constitutional text, history, and precedent, the critiques of Roe seem excessively small and common, for example, that the quality of reasoning could be improved, the court acted too much like a legislature, or that its rules are unworkable. But many constitutional judgments could be critiqued on these grounds. Robin West, a legal scholar, once wrote that the constitutional debates of U.S. abortion law “must be strangely disorienting to anyone who cares about the moral issues.”
For Justice Alito, the only moral question of abortion is the destruction of potential life. The destruction of people’s actual lives in being forced to continue a pregnancy is mere speculation, and hardly of a moral nature. Nor would overruling Roe upend any concrete legal interest, he writes, like those involving property and contract rights. The ability to control your reproductive health and life, and to participate in economic and social life because of it, carry no value for this court. You are now without the Constitution’s protection, but you were never deserving of it. There are no rights to speak of. The abortion right is unthinkable, egregiously wrong from the day Roe was decided.
In this denial, the judgment resounds beyond any abortion law to be written and will shape the future of American life. The Supreme Court could care less about the people whose lives it has so profoundly affected, and this is what the court no longer hides. The dissenting justices call out the majority’s cavalier approach to overturning precedent, a doctrine of judicial modesty and humility. “Those qualities are not evident in today’s opinion,” they note. But what of the majority’s cavalier attitude to overturning the lives of people? There is no humility in this act. There is no humanity. There is only humiliation.
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