Many Americans reacted to the supreme court’s decision to reverse Roe v Wade and abolish federal abortion rights in the US with shock, but many also asked the dreaded question: what will happen next?
Conservative Judge Clarence Thomas appears to be offering an overview of potential future court rulings, suggesting that far-right-controlled courts could return to issues of contraceptive access and marriage equality, which threaten LGBTQ rights.
“In future cases, we will have to reconsider all substantive due process precedents from these courts, including Griswold, Lawrence, and Obergefell,” Thomas wrote in his opinion on Roe’s ruling.
Griswold v Connecticut established the right of married couples to use contraception without government interference in 1965. The court ruled in the 2003 Lawrence v Texas case that it could not criminalize sodomy, and Obergefell v Hodges established the right for same-sex couples to marry in 2015.
In the decision written by Judge Samuel Alito, the conservative majority made clear that the decision in the Dobbs v Jackson Women’s Health Organization should not be construed as a threat to other major precedent cases. But three liberal court judges – Stephen Breyer, Sonia Sotomayor and Elena Kagan – dismissed the logic as a joke in fiery dissent.
“Either the opinion of the masses of the majority is hypocrisy or additional constitutional rights are under threat,” the liberal judge wrote. “It’s one or the other.”
Thomas’s concurrence underscores what many progressive lawmakers and reproductive rights advocates have feared for years. The end of Roe marked the beginning, not the end, of judicial outreach by the court’s conservative majority, they said.
“It is important for Americans to understand that the supreme court and Republicans in this Congress will not stop here,” said Pramila Jayapal, chair of the Congressional Progressive Caucus. “It’s clear [Thomas] and the majority of the courts don’t respect the other precedents that have been won in recent decades.”
Adam Green, co-founder of the Progressive Change Campaign Committee, warned that the court’s decision to oust Roe would only intensify a “giant legitimacy crisis” with millions of Americans.
“Five Republican judges appointed by a losing president routinely make hyper-partisan decisions that take away Americans’ rights,” Green said.
For now, Thomas doesn’t appear to have the support of his conservative colleagues in dropping other major cases, as they disagree with his point of view. But the majority decision authored by Alito could lay the groundwork for discarding the decades-old precedent that has become central to the American way of life, said Paul Schiff Berman, a professor at George Washington University Law School.
“The logic of Judge Alito’s opinion, as demonstrated by the dissent, would seriously threaten the constitutional legitimacy of all constitutional privacy rights,” Berman said. “It goes against the institutional obligation to respect precedent. And it also goes against, as Supreme Court Justice Roberts pointed out in his opinion, the principle that you don’t decide in a particular case more than you have to settle in that case.”
Berman expressed concern that Dobbs’ decision could weaken public confidence in the supreme court, which has waned in recent years. According to a Gallup poll taken this month, only 25% of US adults say they have “a lot” or “a fair amount” of confidence in the supreme court. It was the lowest reading in Gallup’s nearly 50-year history in a public perception poll of the court.
“I think this opinion reflects the fact that the radical faction in the Supreme Court is moving in a maximal direction, despite the fact that the American people as a whole are becoming increasingly progressive on this issue,” Berman said.
For the millions of Americans disillusioned by Roe’s reversal, they have few options for changing the composition of the court in the near future. Judges are appointed to life terms, and the three conservative judges confirmed during Donald Trump’s presidency — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — are all under 60 years of age.
Democratic lawmakers are instead seeking legislative ways to protect basic American rights, and demands for action will probably only increase now that Roe is overturned.
House Speaker Nancy Pelosi issued an urgent request for Americans to support Democrats in midterm elections this November, giving them the opportunity to codify abortion rights into federal law and protect other important liberties.
“Termination of a pregnancy is just the opening act,” Pelosi said Friday. “Women’s right to vote, reproductive freedom is in the ballot in November. We can’t let [Republicans] take over so they can institutionalize their goal, which is to criminalize reproductive freedom.”
As we struggle to make abortion legal at the federal level, I continue to deny the legitimacy of such an undemocratic institution.
But some progressives are looking beyond legislation for significant reform of the courts themselves. Soon after the decision in Dobbs was announced, a number of progressives repeated their calls to expand the court, which would allow Democrats to confirm more liberal judges.
“As we fight to make abortion legal at the federal level, I continue to reject the legitimacy of such an undemocratic institution,” progressive congressman Ilhan Omar said on Twitter. “Expand the court.”
As of now, Democrats don’t have the Senate vote needed to expand the court. That could change after November, if the American people decide to give the Democrats a chance to do so.
