Abortion Rights in the Crosshairs?

In an article in the New York Magazine Intelligencer, Ed Kilgore kicks off the year of speculation he predicts regarding how the Supreme Court might rule in Dobbs v. Jackson Women's Health Organization, a Mississippi abortion rights case it has agreed to hear.

Kilgore presents a worst-case scenario of Roe v. Wade being overturned outright -- from a "chronically pessimistic" legal analyst -- before offering his own take, which sounds realistic to me:

Here is why -- whatever the Court rules -- it is probably necessary to do something proactive on the federal level to protect abortion rights. (Image by CartoonDiablo, via Wikipedia, license.)

Could that (i.e., a reframing rather than a reversal of the right to choose) happen again [as in 1992]? It seems unlikely, but there is one straw in the wind that suggests it's not necessarily a done deal. Breyer, Sotomayor, and Kagan did not choose to publish dissents to the order to hear Dobbs, which one might have expected if a conservative majority to reverse Roe is in place, given the unquestioned unconstitutionality of the Mississippi law under the existing precedents. It remains possible that Roberts and Kavanaugh, fearing an anti-Court outcry among women everywhere, could be persuaded to reaffirm the viability standard yet again, perhaps alongside some new leeway for less fundamental state restrictions. In other words, the 1992 saga could be replayed with a similar result. Short of a change of Court membership during the next year, that may be the abiding hope of reproductive-rights advocates. But they'd best focus most of their efforts on formulating a strategy for restoring the right to choose via intense political warfare in the states.

Had the pandemic not shown just how poorly most politicians, journalists, and activists understand the concept of individual rights, I'd feel optimistic that now would be a good time to work on legislation protecting a woman's right to abort a fetus. Much has changed, culturally since the 1970s and 1990s. To begin with, most Americans support legalization of abortion in some form, with 70% not wishing to see Roe v. Wade overturned. So there would seem to be a basis for optimism that such long-term solutions as legislation or even a constitutional amendment -- that might not have been possible then -- are achievable now. The big but, though, is whether enough people to make a difference truly understand individual rights or how abortion fits into the government's proper purpose of protecting the same.

It will be interesting to see how the Court rules, but regardless, I think it may now be both necessary and possible to protect reproductive rights from being overturned by the Supreme Court.

-- CAV