While we knew from the leak of Justice Samuel A. Alito Jr.’s majority opinion that Roe v. Wade and nearly 50 years of constitutional precedent were hanging by a thread, when the opinion came down Friday morning — a virtual copy of the leaked draft — many Americans no doubt felt a wave of disbelief, anger, dread and fear.
The court’s decision is so emphatic, and so contemptuous of the principle of stare decisis, that one wonders whether the unvarnished radicalism of the decision will finally rouse millions of Americans to the threat posed by a court untethered to law, precedent or reason.
As the dissent (by Justices Stephen G. Breyer, Elena Kagan and Sonia Sotomayor) made clear, the majority opinion is as radical as any in its history: “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. An abortion restriction, the majority holds, is permissible whenever rational, the lowest level of scrutiny known to the law. And because, as the Court has often stated, protecting fetal life is rational, States will feel free to enact all manner of restrictions.”
The result could well be enactment of criminal penalties for every abortion, in any circumstance. “Enforcement of all these draconian restrictions will also be left largely to the States’ devices. A State can of course impose criminal penalties on abortion providers, including lengthy prison sentences,” the three dissenters wrote.
