In 1973, the Supreme Court determined that a woman has a constitutional right to end an unwanted pregnancy, and, under most circumstances, no state could pass a law to stop her.

Now, nearly a half-century later, that right is slipping away.

FBI Kavanaugh

If Supreme Court Justice Brett Kavanaugh considers the Constitution to be “silent” on abortion rights, what other longstanding precedents would the court send back to the states for a popular vote? Susan Walsh/Associated Press

On Wednesday, the U.S. Supreme Court heard oral arguments in a challenge to a Mississippi law that bans abortion after 15 weeks of gestation, a direct attack on the 1973 Roe v. Wade decision. But don’t expect members of the court’s conservative majority to let precedent get in the way.

That was obvious in the questioning by Justice Brett Kavanaugh, who acted as if the dirty work had already been done.

“The Constitution is neither pro-life nor pro-choice on the question of abortion,” Kavanaugh claimed, “but leaves the issue for the people of the states or perhaps Congress to resolve in the democratic process.”

What Kavanaugh is suggesting is a radical proposition. It’s true that the Constitution does not mention the word “abortion,” but over time the court has recognized rights that are fundamental and off limits to the states even if they are not specifically mentioned.

State laws banning interracial marriage, same-sex marriage and contraception have all been struck down as unconstitutional, as have laws that deprived people of the right to procreate or decide where their children go to school. If he considers the Constitution to be “silent” on abortion rights, what other longstanding precedents would the court send back to the states for a popular vote?

Whether the court expressly overturns Roe or finds a way to work around it, sending abortion back to the states means it will no longer be a right. Without the protection of the Supreme Court, access to abortion would be extinguished in almost half of the states. Maine law would protect a woman’s right to choose to end a pregnancy, but other states are ready to roll this right back. According to information compiled by the Guttmacher Institute:

• Twelve states have laws that ban all or most abortions that would go into effect if Roe is overturned.

• Eight states have pre-Roe abortion bans still on the books.

• Nine states have restrictions that are currently blocked by the courts by the Roe precedent.

• Seven states have laws that express the intent to restrict abortion as much as the Supreme Court will allow.

The other five conservatives on the court expressed their willingness to uphold the Mississippi law even if it affected Roe. Kavanaugh’s comments stood out, though, because of the lengths his supporters went to claim that he was not a judicial activist when he was nominated to the court in 2018.

Most notable was Maine Sen. Susan Collins, who stood up for Kavanaugh, saying that he had assured her that he considered Roe v. Wade to be “settled law.”

In her 2018 speech announcing her decision to vote for him, Collins said, “As the judge asserted to me, a long-established precedent is not something to be trimmed, narrowed, discarded, or overlooked.”

It will be months before the court releases its opinion in the Mississippi case, but the statements by Kavanaugh and the others in the oral arguments should prepare Americans for a big change. We’re entering a world where 48 years of precedent is no longer “settled law” and fundamental rights are rights only for some.


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