With Roe decision, Supreme Court sneers at precedent — and places women’s health in jeopardy | Editorial

Despite the justices' decision, abortions will continue. But many will be unsafe and harm women.

Demonstrators outside the U.S. Supreme Court in May.Read moreAlex Brandon / AP

Published June 24, 2022, 3:13 p.m. ET

The inescapable fallacy that hangs like an albatross around the neck of the antiabortion movement is the misguided assumption that women will stop terminating their pregnancies if the procedure becomes illegal. America has been there, done that.

Abortion was illegal in this country before the Supreme Court’s 1973 Roe v. Wade decision, yet millions of abortions were being performed. One quantitative analysis estimated up to 1.2 million illegal abortions were performed annually before Roe.

So, what should we expect now that Roe has been overturned by a Republican-packed Supreme Court so drunk with power that it treated the 50-year-old precedent like a piece of stale bread to be tossed out like garbage? Legal or not, abortions will continue. But just as it was 50 years ago, many will be unsafe and harm women.

Making the court’s decision Friday even more egregious was the eager participation of Justices Neil Gorsuch and Brett Kavanaugh, who in their Senate confirmation hearings said Roe should be upheld under the court’s doctrine of stare decisis, which means the court stands by what it previously decided. House Speaker Nancy Pelosi accused the justices of lying.

“Today, the Republican-controlled Supreme Court has achieved their dark, extreme goal of ripping away women’s right to make their own reproductive health decisions,” she said. “Because of Donald Trump, Mitch McConnell, the Republican Party, and their supermajority on the Supreme Court, American women today have less freedom than their mothers.”

Just as disappointing was Chief Justice John G. Roberts Jr., who earlier suggested he preferred leaving Roe intact while upholding the more restrictive Mississippi abortion law that was before the court. If Roberts didn’t agree with his fellow conservatives, he should have joined the dissenting opinion drafted by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Apparently, that would have taken more bravery than he could muster.

This court has thumbed its nose at every Supreme Court that preceded it and upheld Roe. “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences,” the court said in its majority opinion, which was written by Justice Samuel Alito. That’s sheer arrogance. Alito is suggesting that only the current court was capable of making an appropriate abortion ruling.

In reality, the court’s butchery of Roe has opened the door for similar assaults on other rights whose constitutionality had been considered settled, including affirmative action and gay marriage. Justice Clarence Thomas said in his concurring opinion that those rights, like Roe, are not liberties protected by the due process clause of the 14th Amendment to the Constitution. So, are they next up for the trash heap?

Opportunistic Republicans have exploited the abortion issue for decades to keep evangelical Christians and other abortion foes in their thrall. But their “pro-life” fervor has mostly been a ploy. Otherwise, they would have supported more medical and social programs over the past 50 years that could have helped both women who want to avoid abortion and their children. Instead, they have decried such programs as waste.

The GOP hopes dismantling Roe will help it win elections, starting with the midterms in November. But a recent poll showed that 62% of Americans did not want Roe overturned. Even 41% of Republicans said the law should stand. That means the political gain the extremist wing of the party has courted may not occur. The Supreme Court’s Roe decision may instead help voters choose candidates who won’t ignore their opinion. That’s how democracy should work.