Egregiously wrong

ON FRIDAY morning, 64 million American women of childbearing age woke up with the right to choose what to do with their body.

But by Friday night, that right was gone. The US Supreme Court overturned the case of Roe v Wade, which had bestowed the right to an abortion.

For half a century, American women had relied on this right in making deeply personal and consequential decisions about their bodies, intimate relationships, education, careers, finances, family lives, autonomy, their very dignity.

Now, many of these women will be forced to carry pregnancies to term or seek dangerous alternatives, including women who have been victims of rape or incest, who might die, or whose babies never stood a chance at life. The court made no exceptions.

A new and bare majority – including three justices appointed by ex-president Donald Trump during his tenure – advanced little by way of cogent legal argument to justify this unprecedented volte-face.

Roe was “egregiously wrong,” they said. The case that upheld it three decades ago, Planned Parenthood vs Casey, “perpetuated its errors.” The flaws? They looked like laws, and laws should be made by legislatures. They also ignored the fact that in the past, abortion was illegal.

Yet it is this ruling that is egregiously wrong. This is the first time the US Supreme Court has eliminated a fundamental human right – and not because of any factual change since the two watershed cases, nor because of any evolution of legal principles.

Rather, it is because the majority on the court has long despised these cases and the votes to overturn them were now available. No one can justify removing a right simply by saying the right was once nonexistent. No judge can ignore that a court’s purpose is not to give legislatures more power but to shield individual actions from the vicissitudes of politics.

Claiming to be “scrupulously neutral,” the justices threw women to the wolves, advancing a right-wing agenda. In the name of giving states’ democracies the right to decide, they stripped women of the right to do precisely that.

This is catastrophic enough. But the example set on Friday is also an attack like no other on the very notion of the rule of law.

In distorting the doctrine of
stare decisis – that courts, having considered a matter, should not relitigate it, the court has upended centuries of jurisprudential practice designed to make the law even-handed, predictable, incremental and consistent.

The effects will be felt in decades to come, in the US and elsewhere.

Martin Luther King Jr once said, “The arc of the moral universe is long, but it bends toward justice.” By destroying a right once thought secure, a conservative majority of the US Supreme Court has proven that arc is not only long, it may well bend towards hell.