Takeaways from the Supreme Court’s 6-3 ruling to strike down the Roe v. Wade decision of 1973.
First, the power of labels. Early on in the effort to overturn Roe, the anti-abortion movement adopted the moniker “pro-life.” It was a stroke of genius; who, after all, is opposed to “life”? As many have pointed out over the years, however, a more accurate label would be “pro-birth.” Activists in the anti-abortion crusade evince little interest in issues like health care, childcare or quality education, matters that clearly affect the child after birth.
Or what about gun safety? Why doesn’t that fall under the pro-life banner? Put another way, what does it profit an activist to rescue a fetus in the second trimester only to lose her in the second grade to some gun nut wielding an AR-15?
Adopting the label “pro-life” was brilliant. Now we can only hope the anti-abortion activists, having attained their stated goal, will live fully into that description.
Second, should several of the justices be prosecuted for perjury? During his Senate testimony in 2006, Samuel Alito, author of the Dobbs opinion, assured senators he believed that “Roe v. Wade is an important precedent of the Supreme Court.” In 2017, Neil Gorsuch said about Roe, “That’s the law of the land. I accept the law of the land.”
Similarly, Brett Kavanaugh testified in 2018, “It’s settled as a precedent of the Supreme Court,” and Amy Coney Barrett said in her confirmation hearing in 2020, “Roe v. Wade clearly held that the Constitution protected a woman’s right to terminate a pregnancy.”
All four associate justices voted to overturn Roe. Simple logic would suggest that either they were prevaricating during their testimony before the Senate Judiciary Committee, or they had a sudden change of heart the moment they crossed First Street and assumed their lifetime appointments on the Supreme Court.
Sen. Susan Collins of Maine explicitly said she was blindsided by Kavanaugh, who had assured her that, “I’m a don’t-rock-the-boat kind of judge,” strongly implying that he would not vote to overturn Roe.
“I feel misled,” Collins said last week.
Senator Joe Manchin expressed a similar sense of betrayal by both Kavanaugh and Gorsuch. “I trusted Justice Gorsuch and Justice Kavanaugh when they testified under oath that they also believed Roe v. Wade was settled legal precedent,” the Democratic senator from West Virginia said, “and I am alarmed they chose to reject the stability the ruling has provided for two generations of Americans.”
Section 1001 of the U.S. Code stipulates that “whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the government of the United States, knowingly and willfully” falsifies or conceals information, including before a congressional committee, may be fined or imprisoned up to five years.
I don’t expect indictments anytime soon — Mitch McConnell, who controls the Senate and who orchestrated the appointments of Gorsuch, Kavanaugh and Barrett, would never allow it — but why should Supreme Court justices be held to a lesser standard of honesty and integrity than ordinary citizens?
Third, having tasted the elixir of overturning precedents, Clarence Thomas wants to go further.
“In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote in his concurring opinion. “Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents.”
The Griswold v. Connecticut decision ensured couples the right to procure and use contraceptives. Lawrence v. Texas ruled that criminal penalties against sodomy are unconstitutional, and Obergefell v. Hodges guaranteed same-sex couples the right to marry based on the due process clause and the equal protection clause of the Fourteenth Amendment.
Those were all “erroneous decisions,” Thomas wrote.
Curiously — well, maybe not — Thomas didn’t include Loving v. Virginia in his litany or erroneous decisions (coincidently, his non-Black spouse is named Virginia). Like the other rulings, the 1967 Loving decision was decided on the basis of the Fourteenth Amendment’s due process and equal protections clauses. In this landmark civil rights case, the Court held that laws banning interracial marriage were unconstitutional. If, consistent with Thomas’s logic, the Supreme Court abandons the Loving precedent on the same grounds as negating Griswold, Lawrence and Texas, Thomas’s own marriage presumably would be invalidated.
Finally, some of the evangelicals celebrating the Dobbs decision have remarkably short memories. Evangelicals regarded abortion as a Catholic issue until the late 1970s, long after the Roe v. Wade decision of 1973. Southern Baptists, meeting in St. Louis in 1971, called for the legalization of abortion, a resolution they reaffirmed in 1974, the year after Roe, and again in 1976.
Jerry Falwell did not preach his first anti-abortion sermon until Feb. 26, 1978, more than five years after Roe. Several evangelicals praised the Roe decision, and James Dobson acknowledged in 1973 that the Bible was silent on abortion and therefore it was plausible for an evangelical to believe that “a developing embryo or fetus was not regarded as a full human being.”
Last week, however, Dobson wrote, “Praise God! We have just received the news for which we have been praying and working!” He added, “The ruling in 1973 shocked the nation and divided the country,” conveniently forgetting his own statement at the time.
Randall Balmer, a professor at Dartmouth College, is the author of Bad Faith: Race and the Rise of the Religious Right.