CLEVELAND -- In the same week that marked the second anniversary of the U.S. Supreme Court’s Dobbs v. Jackson Women’s Health decision that overturned Roe v. Wade, the high court moved to allow access to emergency abortions in Idaho when the mother’s health is at risk, reversing an earlier ruling and affirming a Biden administration objection to a blanket state law that almost totally bans abortions.
This followed by two weeks a 9-0 Supreme Court decision that maintained access to mifepristone, the so-called abortion pill that can end a pregnancy in the first trimester.
This is significant because Democrats have been using the June 24 Dobbs anniversary as a launching pad for their ongoing campaign to maintain abortion as an election issue. These two decisions that went in favor of abortion rights, one would think, will make it problematic for them to continue trying to frighten independents and others into believing that Republican election victories will threaten access to legal abortions.
It’s important to note that these cases were decided on the law – as was Dobbs – not on the justices’ personal opinions on abortion.
But that has been the Democratic script for the last two years, after the Dobbs decision reversed the Roe ruling that 49 years earlier had tortured a nonexistent right to abortion out of the Constitution. Democrats warned darkly that it signaled a return to back-alley abortions and coat-hangers.
What it signaled, however, was a return of decisions on abortion access to where they belonged: the people and their elected representatives, rather than seven justices.
The Dobbs decision was never about the morality of abortion, and its pros or cons. It was always about the Constitution, and the need to undo the tangled mess of what Justice Byron White called at the time “an exercise of raw judicial power.”
“I find nothing in the language or history of the Constitution to support the Court’s judgment,” wrote White, a Democrat nominated by President John F. Kennedy, in his 1973 dissent. “The Court simply fashions and announces a new constitutional right for pregnant mothers ... and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes.”
In writing for the majority in the Dobbs decision, Justice Samuel Alito said Roe was “egregiously wrong from the start” and “on a collision course with the Constitution from the day it was decided.”
“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” Alito added, then, quoting from the 1992 Supreme Court ruling in Planned Parenthood of Southeastern Pa. v. Casey: “The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”
And that is what has happened. State after state, either by legislative action or public referendum, has voted to affirm a woman’s legal right to abortion – most blue states and several red ones, including Ohio, which last year amended our state constitution to increase access to abortion that is far more liberal than Roe had allowed.
The pro-choice Guttmacher Institute said that 1,037,000 abortions were performed in the formal U.S. health care system in 2023 – an 11% increase over 2020. If Dobbs was designed to prevent abortions, it did a pretty poor job.
In 14 states since Dobbs, abortion has been almost completely banned. One assumes that reflects the will of the people who live there. But if they decide that’s not how they want to live, they are free to change these laws, or pressure their state legislatures to do so. Even many Republican politicians, regardless of where they stand on abortion, have seen the polls and election results, and are adjusting their attitudes accordingly.
That’s how things are supposed to work, here in the land of the free. Democrats, take note.
Arguing left/right: Last Sunday’s column noted the unrelenting attacks from the left on the conservative court majority that has existed since three conservatives were nominated and confirmed during the Trump administration – something that had not occurred, it said here, during the decades a liberal majority held sway.
The statement generated several reader emails and a scolding letter from Emeritus Professor of Law Jonathan L. Entin (which was published not once, but twice – Tuesday and Wednesday – because of a misunderstanding over whether he wanted his name withheld), saying that there hadn’t been a liberal majority for more than half a century.
In light of that, perhaps I owe a more fleshed-out explanation.
The criticisms would be true if all you do is count the number of justices nominated and confirmed under Republican presidents since 1969 – which, as the good professor wrote, constituted about 75%.
But it’s not that simple. As we well know, justices don’t always turn out the way the men who nominated them expect.
To wit:
Harry Blackmun, nominated by Richard Nixon, started out as a conservative justice all right, but eventually “became the court’s most liberal justice,” according to an acclaimed biography by longtime court observer Linda Greenhouse of the New York Times. He voted with the court’s liberals well over half the time in the last 14 years of his career, which ended in 1994. And Blackmun wrote the 1973 Roe v. Wade majority opinion … need we know more?
Lewis Powell, also nominated by Nixon, served until 1987. He leaned more conservative than liberal but swung to the left often enough to forge the Court coalition in the famous Bakke case that upheld affirmative action, and to cast a concurring vote on the Roe decision.
John Paul Stevens, nominated by Gerald Ford and serving until 2010, is another justice who changed his stripes after being nominated. He wound up as part of a liberal coalition beginning in the mid-’80s, continuing to the point where he was described by New Yorker legal columnist Jeffrey Toobin as the “Chief Justice of the Liberal Supreme Court” over his last 15 years.
Anthony Kennedy, nominated by Ronald Reagan, was a justice for 30 years ending in 2018. Often considered the swing vote between the Court’s four liberals and four conservatives in his later years, he was a reliable defender of LGBTQ rights among other liberal causes, and wrote the majority opinion in Obergefell v. Hodges, which legalized same-sex marriage. Hardly a conservative position.
And David Souter, nominated by George H.W. Bush, embodied one of the most thunderous miscalculations in the history of Court nominations. Soon after his confirmation in 1990, he swung far to the left and went on to serve 18 years as, in the words of the conservative Weekly Standard, “one of the staunchest liberals on the court.”
Add these five swings and misses by Republican presidents to the reliably liberal justices on the court (including the four nominated by Bill Clinton and Barack Obama prior to Trump’s arrival in 2016), and you get an easy explanation for the many activist liberal decisions from the alleged “conservative majority” over the last half-century. The result was a liberal majority on the court in many -- if not most -- of those years.
Dwight Eisenhower famously was supposed to have noted the two biggest mistakes he made as president: “And they’re both still sitting on the Supreme Court,” he said, referring to Earl Warren and William Brennan.
Nixon, Ford, Reagan and Bush the Elder had similar reasons to lament their choices. And so did the conservative voters who elected them.
Ted Diadiun is a member of the editorial board of cleveland.com and The Plain Dealer.
To reach Ted Diadiun: [email protected]
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