Friday, June 24, 2022

The Court Discards That Balance

Roe and Casey well understood the difficulty and divisiveness of the abortion issue.  The Court knew that Americans hold profoundly different views about the "moral[ity]" of "terminating a pregnancy, even in its earliest stage."  Casey, 505 U. S., at 850.  And the Court recognized that "the State has legitimate interests from the outset of the pregnancy in protecting" the "life of the fetus that may become a child."  Id., at 846.  So the Court struck a balance, as it often does when values and goals compete.  It held that the State could prohibit abortions after fetal viability, so long as the ban contained exceptions to safeguard a woman's life or health.  It held that even before viability, the State could regulate the abortion procedure in multiple and meaningful ways.  But until the viability line was crossed, the Court held, a State could not impose a "substantial obstacle" on a woman's "right to elect the procedure" as she (not the government) thought proper, in light of all the circumstances and complexities of her own life.  Ibid.

Today, the Court discards that balance.  It says that from the very moment of fertilization, a woman has no rights to speak of.  A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs.

-- Supreme Court Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan, dissenting in Dobbs v Jackson Women's Health Organization, in which the majority ruled that the Constitution does not grant women the right to an abortion, overturning the ~50-year precedent of Roe v Wade, 24 June 2022

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