Justice Brett M. Kavanaugh’s feckless concurrence claiming the court is simply being neutral on the issue of abortion is preposterous, as the dissent makes clear: “His idea is that neutrality lies in giving the abortion issue to the States, where some can go one way and some another. But would he say that the Court is being ‘scrupulously neutral’ if it allowed New York and California to ban all the guns they want?”
The hypocrisy and intellectual dishonesty of the court’s right-wing justices lead to the conclusion that they have simply appointed themselves super-legislators free to impose a view of the United States as a White, Christian and male-dominated society.
To understand how radical the court’s decision is, one need only consider Justice Clarence Thomas’s concurrence, where he says the quiet part out loud: He’d sweep away 14th Amendment substantive due process — birth control, gay marriage, all of it. There is no bright line between destroying the expansive view of liberty in the 14th Amendment, when abortion is at issue, and destroying it for all other intimate decisions. The right-wing majority’s willingness to countenance an all-powerful state that interferes with every aspect of our lives is breathtaking.
The dissent says it plainly: The majority “makes radical change too easy and too fast, based on nothing more than the new views of new judges. … The majority thereby substitutes a rule by judges for the rule of law.”
And now what? States will race to criminalize abortion. Women’s lives and personhood will be put at risk. But that is not the end. Ultimately, the people — even in the court’s telling — still have control. They can vote out those who would drastically criminalize women unwilling to be forced to give birth. They can elect senators to do away with the filibuster in order to protect reproductive rights and reformulate the court, including the removal of lifetime tenure. The response frankly must be as bold and decisive as the court’s affront.
The court’s decision may result in women’s deaths. But it has certainly killed off what is left of the court’s credibility. And for that, there is no solution in sight.