Op-Ed: The Stench at the Supreme Court

The science on which Roe v. Wade was based has not changed. What has changed is the court’s membership and their originalist interpretation of the Constitution.

By Nancy Gertner

December 2, 2021

To read on the Boston Globe website, click here.

“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” That was the question Justice Sonia Sotomayor asked Wednesday as the US Supreme Court heard oral arguments in Dobbs v. Jackson Women’s Health Organization, after quoting the sponsors of the law, who said, “We’re doing it [passing this law] because we have new justices.” Dobbs challenges a Mississippi law that bans abortions after 15 weeks of pregnancy. Dobbs is not just about Mississippi; it has become synonymous with the question of whether Roe v. Wade, the watershed 1973 case that legalized abortion, will be overturned by the court.

Fifteen justices since Roe v. Wade in 1972, 13 since the 1992 Planned Parenthood v. Casey case that reaffirmed Roe, have held that abortion may not be banned before fetal viability at 23 to 24 weeks. Justice Sandra Day O’Connor wrote in Casey: “The ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives.” Indeed, she added, since Roe an entire generation of American women had formed relationships and started — or decided not to start — families under the assumption they had this right. And, presaging Sotomayor, she added, “to overturn something so momentous would call into question the court’s own legitimacy.”

The defendants in the Dobbs case claim that the court’s legitimacy depends not only on precedent but also on correcting egregious errors in past cases. Roe, they claim, is such a case. The plaintiffs draw a different conclusion about Roe; there is no basis in law or fact to upend it.

The science on which Roe was based has not changed. While more fetuses can live outside the womb at earlier points, no one puts the date of viability at 15 weeks. What has changed is the court’s membership and their originalist interpretation of the Constitution — a change some might say came about through underhanded means. Originalism, as Justice Amy Coney Barrett defined it, is the belief that “constitutional text means what it did at the time it was ratified and that this original public meaning is authoritative.”

Roe may well be inconsistent with the original intent of the 14th Amendment to the Constitution, the amendment that enshrined protections for the liberty and privacy interests of US citizens. One of the first cases to reach the court after the amendment’s passage involved Myra Bradwell, who challenged a court ruling barring her from becoming a lawyer. The law’s intent was crystal clear according to the court and, even better, aligned with an authority above the Supreme Court: “The Creator” had decreed that the “paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother.” Bradwell had no right to be a lawyer. So much for original intent.

None of this history mattered to some justices, which is not surprising. When Justice Samuel Alito was a government lawyer, he wrote that he was proud to have helped advance “legal positions in which I personally believe very strongly,” including that “the Constitution does not protect a right to an abortion.” At his confirmation hearings in 1991, Justice Clarence Thomas said that he “had never discussed Roe v. Wade and had no opinion about it,” as reported by Michael Kinsley at the time, although the very next year he dissented from the decision reaffirming Roe’s core holding. Barrett, then a law professor, signed a 2006 newspaper advertisement opposing “abortion on demand.” Justice Brett Kavanaugh voted to block the abortion of an unaccompanied immigrant minor in US detention, ignoring the impact the delay would have on her constitutional liberty.

Will the reversal of Roe v. Wade affect Massachusetts? Not at all. In 1980, I joined with my husband, John Reinstein of the ACLU of Massachusetts, in successfully arguing that the right to choose abortion was protected under the Massachusetts Constitution. And in 2020, Massachusetts passed the ROE Act expanding abortion access. The rest of the country? According to the Guttmacher Institute, if Roe is overturned, 26 states will probably ban abortion.

And what about that other cost of a Roe reversal — the standing of the court? Its approval rating in September was 40 percent, down from 49 percent in July. How much further it will go depends on what Sotomayor pointedly described — how long the “stench” of this decision will linger.

Nancy Gertner is a retired federal judge in Boston and a law professor at Harvard.