After the U.S. Supreme Court struck down the constitutional guarantee of abortion rights in Roe v. Wade in a 5-4 vote, abortion laws across the United States have been thrown into chaos.
Democratic district attorneys in some Republican states refuse to enforce laws restricting abortion; some abortion laws that are more than 100 years old are suddenly reinstated because they are no longer unconstitutional; many conservative states have multiple contradictory laws restricting abortion, and no one Know which one applies.
Judges in states from Texas to Utah have suspended some abortion laws, while others have allowed similar laws to go into effect.
This chaos is the predictable consequence of the sudden overthrow of constitutional guarantees that had been established for half a century.
Regardless of whether the U.S. Constitution, which does not explicitly mention abortion, contains the guarantee of the right to abortion, the instant dismantling of such a legal system that has been in operation since 1973, in the conservative spirit of the common law, is often a kind of "if not necessary" action to be avoided.
However, after the Supreme Court's conservative justices occupy a large majority, it seems that this legal conservative spirit is no longer scrutinized.
Is it necessary to overturn Roe v. Wade?
This conservative spirit is precisely the "principle of judicial restraint" that Chief Justice John Roberts (John Roberts), who is also a conservative, stated in his joint opinion in his case: "If the The case doesn't have to be judged more, it has to be judged more."
This principle embodies the spirit of "following precedent" (stare decisis) that the common law system values.
In fact, as early as 1992 in Planned Parenthood v. Casey, when the constitutional guarantee of Roe v. Wade was challenged, the three conservative justices at the time stated that they "follow the Precedent" is why they decided not to overturn the constitutional guarantee of the right to abortion, but to make adjustments to its specific norms.
The three judges pointed out at the time that the precedent of Roe v. Wade had established a "dependency", and the consequences of overturning it would bring special hardship and inequity.
The U.S. Supreme Court overturned Roe v. Wade, becoming the first country to take back the right to abortion.
(AP)
Today, 30 years later, when women in the United States worry that the menstrual recording program on their mobile phone may be used by the government as anti-abortion law enforcement, when women in need of abortion find that they have nowhere to turn for hundreds of kilometers, they encounter It is precisely this kind of suffering and injustice.
In Dobbs v. Jackson Women's Health Organization, which overturned Roe v. Wade, John Roberts argued that the Supreme Court did not need to overturn abortion rights at all.
At the heart of the Dobbs case is a Mississippi law that prohibits most abortions after 15 weeks of pregnancy, with a time limit that matches the "viable gestational age" established in Roe v. Wade and Casey "(viability, that is, the fetus can survive alone outside the mother, about 23, 24 weeks) before abortion can be contradicted.
Therefore, John Roberts pointed out that the core of the case is "whether the restriction of abortion before the pregnancy reaches the viable gestational age is completely unconstitutional", which is in contrast to the Roe v. The protection of “rights” are two different disputes, and the answer to the former does not necessarily affect the answer to the latter.
Conservative Judicial Opportunism
In fact, in Mississippi's original appeal in 2018 and its appeal to the Supreme Court in 2020, they did not ask the Supreme Court to revisit Roe v. "This boundary line for abortion rights, more clearly stating that the favorable decision in Mississippi "does not require the courts to overturn" abortion rights guarantees.
However, between 2018 and 2021, the distribution of the Supreme Court's justice faction has changed significantly.
In 2018, as a swing vote on the Supreme Court, conservative Justice Anthony Anthony, who established the right to same-sex marriage
After Anthony Kennedy's retirement, Trump appointed Brett Kavanaugh, who was named one of the most conservative justices on the D.C. Circuit Court in more than a decade, to make the court more explicitly 5 conservatives Most of the party 4 liberals.
After Kavanaugh was nominated, a string of sexual assault scandals broke out.
The picture shows him and his wife appearing on Fox TV to clarify the allegations of sexual assault.
(Fox News)
In 2020, liberal Justice Ruth Bader Ginsburg died less than two months before the presidential election.
Republicans swiftly passed Trump's third conservative justice appointment, in defiance of their 2016 principle of "election first, judge appointments later," named for Amy Coney Barrett, who was under 50 at the time. ) replaces Ginsburg.
At this moment, the court has shown the overwhelming majority of the six conservatives. Many Republican states have deliberately passed anti-abortion legislation that clearly violates the precedent of "Roe v. Wade", hoping to send the lawsuit to the Supreme Court so that the conservative majority can. Opportunity to overturn abortion rights guarantees.
In May 2021, the Supreme Court decided to accept Mississippi's appeal, and people already knew that it was not good: Mississippi's law clearly violated "Roe v. Wade", and accepting the appeal itself showed that the court intends to amend its content.
At this time, seeing that the Supreme Court was divided from 4 conservatives, 1 swing, and 4 liberal factions into a conservative world with 6 conservatives and 3 liberals, Mississippi immediately changed the requirement that only the boundary of "viable gestational age" be re-examined. Instead, it asked the court to strike down the constitutional guarantee of "a woman's right to choose to terminate her pregnancy".
The move is clearly from conservative judicial opportunism.
The revenge of the "Federalist Institute" that quickly overturned the precedent
In the face of such opportunistic behavior, Chief Justice John Roberts believes that the main question is: If the court is to rule that Mississippi's abortion ban after 15 weeks of pregnancy is constitutional, does it need to also revoke the guarantee of abortion rights?
John Roberts' answer: Of course not.
For John Roberts, the "viable gestational age" boundary has no constitutional basis, and its rationale seems to be only at the level of ease of enforcement, so it deserves to be abolished, so he also agrees that the Supreme Court should abolish this boundary at this time.
However, the abolition of the boundary only means that states can legislate to prohibit abortion before the time boundary of "viable gestational age" after taking into account the different interests related to abortion in previous cases, but they cannot completely prohibit abortion. The line will also have the opportunity to be re-examined more carefully by the Supreme Court in the future.
That is to say, even if conservatives overturn the guarantee of abortion rights, they should not be in a hurry, but should proceed gradually, which will look good in the eyes of the public, and allow the people to gradually adjust.
Abortion rights in the U.S.: Opponents of abortion gather and celebrate outside the Supreme Court in Washington after the U.S. Supreme Court overturned the Roe v. Wade decision on June 24, 2022.
(AP)
John Roberts also pointed out that if only the boundaries were abolished and the abortion right was not abolished, women who had been accustomed to planning their lives under the protection of the abortion right for the past 49 years would not immediately experience a change in their life planning, because no one I plan my life with the idea of having an abortion before 24 weeks, not 15 weeks.
Of course, "following precedent" and "principle of judicial restraint" do not mean that any precedent cannot be overturned.
If we were to go back to the Supreme Court's overturning of constitutional protections for individual liberties, we would go back to West Coast Hotel Co. v. Parrish in 1937.
At that time, people began to pay attention to the poor treatment of labor by employers, so various government regulations on labor protection have been developed one after another. However, there have been cases before to protect the freedom of individuals to sign contracts, which seems to contradict the government’s establishment of minimum wage regulations to regulate labor contracts. .
Ultimately, the Supreme Court overturned this absolute freedom to sign contracts, arguing that norms such as labor guarantees were a prerequisite for individual freedom in society.
When the Supreme Court overturned the "Roe v. Wade case" this time, it also cited the precedent of the "Parrish case" to show that the court can overturn the guarantee of the right to liberty.
John Roberts did not dispute this, but he pointed out that the "Parrish case" involved people living in "unprecedented economic despair" at the time, highlighting the previous constitutional rights There are "fundamental flaws" and therefore cannot but be revised.
In comparison, the protection of women's abortion rights has been implemented for nearly 50 years. Although there are ideological disputes, there is no fundamental flaw in implementation, so the two are not comparable.
The five conservative justices, despite the resolute opposition of the chief justice, with their "large number", have essentially abandoned the "principle of judicial restraint" and overturned the 49-year-old constitutional rights next time, which reflects their stability. The agitation over the one-sided power that has won a majority on the Supreme Court and is expected to hold power for decades.
On October 26, 2020, Amy Coney Barrett was sworn in as a Supreme Court justice at the White House.
(AP)
In the 1950s and 1960s, the Supreme Court, dominated by liberals, expanded a series of human rights guarantees, including prohibiting school segregation and requiring the police to inform the police of their legal rights when arresting suspects – legal developments that have long been viewed by conservatives. It is called "judicial activism", that is, liberal judges overstep their authority to legislate by interpreting the law, and this recognition has also catalyzed the following decades for conservatives to be represented by the "Federalist Society" (Federalist Society) China's judicial personnel strategy, and systematically cultivate conservative talents to take up important judicial positions at the national level.
At least five conservative justices on the Supreme Court today (ie, with the exception of John Roberts, whose membership has not been established) are also members of this society.
With power in power, overturning what they see as liberal human rights protections seems to have become their judicial task.
Abolishing women's right to choose pregnancy is just the first step?
People have noticed that the legal logic used in this abortion right decision can easily be extended to the protection of constitutional rights to freedom of contraception, same-sex marriage, and interracial marriage.
Lest people worry, the conservative judge emphasized in his legal opinion that the ruling does not affect these other rights.
However, Justice Clarence Thomas pointed out in his concurring opinion that while this decision does not affect other precedents not related to abortion, because previous decisions "could be proven wrong" and "we There is an obligation to correct mistakes", so "in future cases, we must reconsider" precedents including guarantees of contraceptive rights, same-sex marriage rights, etc.
Thomas, who used to be an extremely conservative voice in the court, is now in the Supreme Court where conservatives occupy the majority. In terms of his seniority, his influence is far higher than in the past, and his opinions cannot be ignored.
Mary Ziegler, a professor at the University of California, Davis School of Law and an expert in legal history, pointed out that "the logic of the Supreme Court, if it is deduced consistently ... will certainly apply to other constitutional rights", and that "only similar policies" really stand in the way of the court. Consideration or reassurance, etc., but we know from the history of the court that these disclaimers have an expiry date.”
The overthrow of abortion rights at this moment has provoked daily protests across the United States, and the Supreme Court's popularity has fallen to a 50-year low (25%).
The dispute will continue in another form after courts leave the power to regulate abortion to the states.
Should we ban people from interstate abortions?
How can women be banned from self-medicating abortions?
Trump-era Vice President Mike Pence has vowed to take advantage of the failure of abortion rights to push for a nationwide abortion ban in Congress; Democratic progressive Rep. Alexandria Ocasio-Cortez Cortez, has argued that Congress should impeach conservative Supreme Court justices.
The conflict appears to be intensifying.
If conservative justices continue their judicial turmoil, further withdrawing or limiting other human rights guarantees, a new wave of revolutionary street fighting will be inevitable at a time when Congress is incompetent and the White House has no power to block the courts.
During the civil rights movement in the 1950s and 1960s, despite the fierce protests on the streets, the people on the streets still had the support of the liberal Supreme Court and somewhat idealistic rulers.
Today, however, the courts have become the driving force of the struggle, and those in power are incompetent and powerless.
If a new wave of the civil rights movement does break out, its confrontation may be even more intense than it was then.
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