If in fact the Supreme Court overturns Roe v. Wade next June, who is to blame? Some people say that when disaster strikes, casting about for blame is an unproductive exercise. Oh, no. Not in this case. This is a looming calamity not just for women and their bodily autonomy but potentially for broadly shared personal freedoms more generally, for the Fourteenth Amendment, for the Supreme Court, and much more. If there ever was a moment for blame, it’s now.
First up, the “pro-life” movement obviously bears responsibility. One might say it’s hard to “blame” them—they’d welcome the opprobrium because this is the outcome they’ve been transparent about for 40 years. But that depends on what the meaning of “transparent” is. Yes, they’ve been open about their overall goal, but they and their political champions have lied and misled the public constantly whenever Republicans in state legislatures pass draconian anti-abortion laws that limit the right even in cases of rape and incest.
When Texas passed Senate Bill 8—the dystopian abortion “bounty” bill—earlier this fall, Governor Greg Abbott was asked why he would force victims of rape or incest to give birth. He replied that the bill made no such requirement because … it still permitted women to have six weeks to decide whether to seek an abortion! Most women, of course, don’t even discover their pregnancy until well after that—a fact Abbott knows all too well. History is littered with these kinds of lies and obfuscations and denials, like these ghastly remarks by Tony Perkins and then–Virginia Governor Bob McDonnell when he signed that infamous vaginal ultrasound bill. Their contention, that the addition of an invasive ultrasound was necessary for patients to be properly “informed,” was medically and scientifically false, as they well knew.
Speaking of lying, here’s culprit number two: the conservative justices themselves, who serially and breezily lied and lied and lied to the Senate Judiciary Committee about having no agenda with regard to Roe and respecting precedent and all the rest. Everyone knew at the time they were lying. Everyone. But when that was pointed out, the people who pointed it out were accused of being uncivil or polarizing or offensive.
But let’s look at the record.
Clarence Thomas, 1991: “I believe the Constitution protects the right to privacy.… Senator, your question to me was did I debate the contents of Roe v. Wade, the outcome in Roe v. Wade, do I have this day an opinion, a personal opinion on the outcome in Roe v. Wade; and my answer to you is that I do not.”
John Roberts, 2005: “Well, beyond that, [Roe v. Wade is] settled as a precedent of the court, entitled to respect under principles of stare decisis. And those principles, applied in the Casey case, explain when cases should be revisited and when they should not. And it is settled as a precedent of the court, yes.”
Samuel Alito, 2006, being asked about something he wrote as a lawyer saying there was no constitutional right to abortion: “That was a statement that I made at a prior period of time when I was performing a different role, and as I said yesterday, when someone becomes a judge, you really have to put aside the things that you did as a lawyer at prior points in your legal career and think about legal issues the way a judge thinks about legal issues.”
Neil Gorsuch, 2017: “Precedent … deserves our respect. And to come in and think that just because I’m new or the latest thing I’d know better than everybody who comes before me would be an act of hubris.”
Brett Kavanaugh, 2018: “As a judge, it is an important precedent of the Supreme Court. I said that it’s settled as a precedent of the Supreme Court under stare decisis.… It has been reaffirmed many times over the past 45 years.” Note that at Wednesday’s oral arguments, Kavanaugh went after precisely this point, posing questions that indicated clearly that precedent on this case makes no difference to him.
Amy Coney Barrett, 2020: “Roe is not a super-precedent because calls for its overruling have never ceased. But that doesn’t mean that Roe should be overruled; it just means that it doesn’t fall on the small handful of cases like Marbury v. Madison and Brown v. the Board that no one questions anymore.”
OK, Barrett was a little more honest than the others. But only a smidge, given that the actual honest answer was, “Yes, I think Roe is bad law and bad morals, I spent a substantial amount of my life as a strident anti-choice activist, and I’ll overturn it first chance I get.”
These characters bring us to a third culprit: Susan Collins. You’ll recall the remark of the nominally pro-choice “moderate” GOP Maine senator after meeting with Kavanaugh: “He said that he agreed with what Justice Roberts said at his nomination hearing, in which he said it was settled law.”
People sometimes refer to Collins as naïve, or hopelessly naïve. This is nonsense. She lied. Maine leans Democratic overall, but its GOP is nuts; remember Paul LePage? She obviously feared a primary if she didn’t find some lame excuse to vote for Kavanaugh. If Roe is overturned next June, she’ll undoubtedly profess her “shock” and “disappointment” in Kavanaugh. Please. She is probably as responsible for Roe’s destruction as any single living American. I hope she realizes that this, and not anything else she’s done in her mostly unremarkable career, is what she’ll be remembered for.
But now we must turn to the other side of the aisle. Culprit four, I’m sorry to say, is Ruth Bader Ginsburg. Yes, I adore her. I dragged my then-9-year-old daughter to watch the documentary that celebrated her career. But the fact remains that she should have retired while Barack Obama was president. It was an act of hubris not to do so. I’ll stop there, except to say that with that one decision, to hang onto her seat for life, she risked playing a role in the undoing of so many of the things for which she had so valiantly fought. It was her gamble, and the rest of us will pay the cost.
And speaking of Obama, he is culprit five, because he failed to make the fight over Scalia’s successor the all-out political battle it should have been. Scalia’s body was barely cold when I wrote in The Daily Beast that Obama should nominate Tino Cuellar, an impeccably qualified, younger Latino judge from California. Mitch McConnell may well still have blocked him, but at least Obama would have forced the issue of the court to the fore in an aggressive way and helped solidify the Latino vote. It also would have helped heighten the salience of the issue in the campaigns to come if he’d waged war on America’s front pages over the illiberal turn the GOP was taking even before Trump further accelerated the party’s trajectory. At a moment when the future was so obviously in the balance, it was inexcusable that Obama believed, in the eighth year of his presidency, that he could make McConnell see sweet reason with a moderate nominee.
Culprit six is the Democratic Party generally and the Hillary Clinton campaign. Yes, Clinton warned about the Supreme Court from time to time, but Republicans were far more successful at making it an animating issue for their base. Recall that in 2016, a lot of evangelicals were cool to Trump, especially after the Access Hollywood tape emerged. But in the end they turned out for Trump because he was going to have the chance to fill Scalia’s seat. Republicans and their preachers got that message out well. Democrats did not.
Seventh and last, we must fault those anti-Clinton leftists who refused to vote for her despite the obvious stakes. Anyone on the broad left, especially in a swing state, who didn’t walk into that voting booth in 2016 thinking about that Scalia seat was being grotesquely irresponsible. If Clinton had only received the 40-odd-thousand votes she needed across the three key states of Pennsylvania, Wisconsin, and Michigan, we’d be living in a different world. At worst, today’s Supreme Court would be deadlocked at 4–4 (McConnell may have still denied her a seat), but more likely it would have a 5–4 liberal majority for the first time in decades. That would not only protect Roe—it would threaten Citizens United, GOP gerrymandering, corporate personhood, and a host of other decisions that help the far right keep and hold power. But now those matters are safe and settled, and Roe is on the chopping block—as might be, perhaps, same-sex marriage or the right to contraceptives one day. I hope the wave of righteousness people felt after casting their ballots for idiot Putinista Jill Stein was worth it to them.
This is a cataclysm of immense proportions. And if you think the right will stop here, you are terribly mistaken. They won’t be content to leave the matter to the states. Given that half the states will legalize abortion rights, including most of the high-population ones, that’s still a lot of baby killing to stop.
No—after Roe is overturned, the next push, many suspect, will be for a federal law recognizing fetal personhood. That happens only if the Republicans retake the House and Senate. That can be stopped, but there’s only one way to do it. If you still think voting doesn’t matter, then move to a country where you can’t. Which might be this one, sooner than we think.