In a recent Supreme Court hearing, Justice Brett Kavanaugh advanced this case to reverse a precedent and nullify a woman’s right to make critical health decisions for herself: “The Constitution does not is neither pro-life nor pro-choice on the abortion issue but leaves the issue for the people of the States or perhaps Congress to resolve into the democratic process.
At first glance, it seems fair. In a democracy, let “the people” decide what the law should be. But Kavanaugh’s argument is deeply misleading, and he deeply misunderstands the nature of the American political tradition. In our system, when a right is deemed fundamental, it cannot be abrogated by popular vote.
The founders created a network of checks and balances – especially federal courts – to protect the rights of individuals, even when they are unpopular. As Harvard law professor Jeannie Suk Gersen wrote in The New Yorker: “The point of a fundamental constitutional right is that it should not be at the mercy of the people, especially when the composition of the court itself has been modified by political means for this purpose. . “
Nationally, in the latest Washington Post / ABC poll, 60% support retaining Roe v. Wade, the 1973 case that established abortion rights, and which includes 42% of Republicans. Only 27% support what Kavanaugh and the other five Tory judges seem to want to do – topple Roe.
But the state level presents a very different picture. If Roe is reversed, 26 states, mostly in the South and the Western Mountains, are “certain or likely to ban abortion,” according to the Pro-Choice Guttmacher Institute. The “fundamental constitutional right” described by Gersen would be overruled by a tyrannical segment of the “people”.
A parallel is the historic struggle for racial equality. In 1954, the High Court issued a unanimous decision in the Brown case which banned separate schools as “inherently unequal”. Under the same banner of “state rights” wielded by Kavanaugh, a massive campaign of resistance to integration has been waged for decades.
But here’s the difference: In 1954, the court upheld the principle of the expansion of justice and freedom, even when those principles were deeply unpopular in some quarters. Today, the court appears to be on the verge of repealing a fundamental right that has been established in law for 48 years.
As Solicitor General Elizabeth Prelogar warned the judges, “The court has never revoked a right so fundamental to so many Americans and so essential to their ability to participate fully and equitably in society.
Even the most basic rights are not absolute. The court has allowed states to limit abortions after the “viability” of a fetus to live outside the womb – about 22 to 24 weeks. In the 1992 Casey case, judges authorized restrictions that do not place an “undue burden” on pregnant women: an eminently healthy compromise between fiercely opposed ideologies.
We must respect the personal beliefs of women who, for religious or moral reasons, regard abortion as immoral and would never have one themselves. It is also true that even the most adamant supporters of the right to abortion may downplay the risks, physical and emotional, that the procedure involves. But the principle behind Roe remains valid: Women should have the right to weigh these risks and make those decisions for themselves.
A significant part of the Republican Party has already believed this too. Consistent libertarians have always insisted that the government does not have to dictate how a woman controls her own body. In fact, Barry Goldwater, known as “Mr. Conservative,” who ran for president on the Republican list in 1964, was a staunch supporter of abortion rights that Planned Parenthood named an award in. his honor.
But over the past few decades, the GOP has been captured by an alliance of Southern conservatives and evangelical Christians who take the exact opposite view – they are gaining and using the power of government to impose their religious and moral values on everyone. world. Their main goal has been to stack federal courts, especially the Supreme Court, with like-minded judges.
“Evangelicals developed a strategy, stuck to it and it paid off,” Ralph Reed, former head of the Christian Coalition, told The Post. “They are betting on a long-term, historic and multi-decade transformation of the federal courts in a way that would no longer be hostile to their values.”
The strategy worked. The court appears ready to reward their efforts and overturn or restrict Roe. But America has always stood for the constant, albeit irregular, expansion of freedom, rather than its contraction. And history will pass a harsh judgment on any judge who betrays this principle.
Steven Roberts teaches politics and journalism at George Washington University. He can be contacted by email at [email protected]