In May, the Supreme Court ruled 5-4 in Franchise Tax Board of California v. Hyatt that states have sovereign immunity from suits brought by individuals in the courts of another state. There is a lot to be said for that conclusion. But the court had held otherwise in Nevada v. Hall 40 years ago. Hyatt overruled Hall.
Justice Clarence Thomas wrote the opinion, and he was joined by Chief Justice John Roberts and Justices Samuel Alito, Neil Gorsuch and Brett Kavanaugh. That is the lineup some people are counting on to overrule Roe v. Wade, and the point was not lost on the dissenters. Justice Stephen Breyer, writing for them, said, “Today’s decision can only cause one to wonder which cases the court will overrule next.”
We may be nearing the day when Roe v. Wade is finally overturned. Although many pro-life supporters dream of this as the end of their labors, they are wrong. It would only be the beginning.
We’re already seeing hints of what would happen if Roe were overturned. A few states are determined to fund abortions with taxpayer money (California and Oregon) and to make them legal until the very last moment of pregnancy (New York).
On the other side, Mississippi, Ohio and Georgia have passed laws banning abortion beginning at about six weeks, when a fetal heartbeat can be detected. On May 14, Alabama voted to pass a near-total ban, which will likely become a vehicle for directly challenging Roe.
Many states that decide to keep abortion legal would nevertheless restrict it more than they do now. Many more will move to stop funding it, without nearly as much judicial interference as has been common in the Roe era.
Abortion would unquestionably remain legal in many states, and available to anyone with bus fare. But the reversal of Roe would at least make abortion part of our democratic debate for the first time in almost half a century.
That would be a good thing, for democracy and for the law itself. Respect for the law would increase if it were permitted to make their own decisions and we had a better match between the law and voters’ moral sensibilities.
Overturning Roe also would extricate the Supreme Court from the business of making things up to enforce social norms that some justices prefer — the kind of ad hoc jurisprudence that Roe epitomizes.
Voters in various states would finally get to choose their own social norms, instead of receiving them from an unelected board of Platonic guardians. This would increase respect for the court as well as the law.
It also would spare us the poisonous nomination fights we have seen ever since President Ronald Reagan nominated Robert Bork in 1987.
Marbury v. Madison held that the Supreme Court’s decisions are the supreme law of the land. When you combine this with the power to invent law not found in the Constitution, which the court asserted in Roe, the stakes for nomination fights have no limit. This has, inevitably, led to cutthroat struggles, junking Senate rules and character assassination of nominees.
Overturning Roe and trusting state democratic processes would also, I like to think, save a lot of lives.
State abortion restrictions and the good work of pregnancy help centers brought annual reported totals down to about 640,000 as of 2015, according to the Centers for Disease Control and Prevention. That’s less than half the number of abortions performed in 1990. And it approaches the number reported in 1973, the year Roe was decided.
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