Robert Brent Toplin
Even though most adult Americans support women’s rights to obtain an abortion, conservative justices on the Supreme Court are signaling interest in removing protections established almost a half-century ago in Roe v. Wade. If the Court’s ruling in Dobbs v. Jackson Women’s Health Organization clashes dramatically with public opinion, it could roil American politics and damage the Supreme Court’s reputation for objectivity. It might produce a huge backlash the resembles the explosive impact of the notorious Dred Scott decision of 1857.
In view of comments made recently by justices in their deliberations regarding the Mississippi case, conservatives on the Court might back a radical departure that overturns Roe v. Wade, the 1973 ruling that allowed abortion under specific conditions. Conservative justices may decide to allow voters and legislators to determine abortion laws state by state. That approach would make abortion essentially illegal in twenty or more states. Thousands of women, especially those of poor or middle-class status, would not have the means to travel far to obtain an abortion.
Opinions on abortion have long been contentious. A middle ground cannot easily be achieved on the subject. The parties in dispute project conflicting ideas about morality. Defenders of the Roe v. Wade decision stress a woman’s right to choose. They object to state interference in a personal and private matter related to a woman’s body. Critics of abortion stress that human beings need to be protected from lethal violence. Abortion, they argue, is a form of killing.
This is not the place to recap a debate that has been communicated frequently. The point under consideration here relates to public opinion and the political implications of court decisions that fly in the face of prevailing sentiments. If the Court undercuts Roe, its decision will conflict sharply with opinion. A Pew Research Center Poll published in May 2021 found a 59% majority of adult Americans said abortion should be legal in all or most cases. Only 39% said it should be illegal in all or most cases.
A controversial decision by the Court would be problematic because it would have the appearance of grossly partisan overreach. Pew’s research found deep divisions on abortion within and between the political parties. The divide is much wider in 2021 than it was at the beginning of the twenty-first century. In 2021 Democrats and Democrat-leaning independents favored abortion rights by 80%. Republicans and Republican-leaning independents favored it by only 35%.
If conservatives decide to overturn Roe, their action will have the appearance of a blatantly partisan act. Republican presidents nominated all the Court’s conservative justices, and Democratic presidents nominated all justices that currently express interest in upholding rights to abortion.
Claims that the Supreme Court is simply judging the constitutionality of abortion will appear transparently false in this situation. Justice Sonia Sotomayor, nominated by President Barack Obama, stated that impression strikingly, saying the Court might not “survive the stench” if it undercuts abortion rights.
There are some resemblances in the current Mississippi case to the infamous Dred Scott decision. In 1857 the Court came under severe public condemnation or taking a partisan stand in what was essentially a political dispute. Critics viewed the case not in isolation but as the latest in a long train of irritations related to slavery. The ruling was enormously controversial because it had the potential to shake up American society. If the present-day Supreme Court rules against Roe, it, too, could provoke enormous outrage.
Critics of the Supreme Court’s 1857 decision complained the Dred Scott case was not just about Constitutional technicalities; it was essentially about politics. The ruling certainly had the appearance of partisan intervention. Before 1857, Americans had become deeply divided on questions related to the extension of slavery into new territories, regions that someday could qualify for statehood. Chief Justice Roger Taney and southerners on the Supreme Court took a position that appeared to undermine the recently created Republican Party (many Republicans were bitterly opposed to slavery’s expansion into the territories). In a politically charged decision, justices ruled that all blacks, slave and free, were not citizens of the United States. Their ruling also declared the Missouri Compromise of 1820 unconstitutional, a judgment that seemed to allow slavery in all the nation’s territories.
The Dred Scott decision excited reactions because it occurred against a background of decades-long agitation over slavery. From the 1830s to the 1850s, American politics had been rocked by disputes about slavery, including fights over abolitionist agitation, disagreements about apprehending fugitive slaves, and disputes about the place of slaves in the territories. Against that backdrop, the bold ruling created a political bombshell.
If conservatives on the current U.S. Supreme Court dismantle much of Roe v. Wade and make abortion extremely difficult for millions of American women, they, too, could reap the whirlwind. Their blatant example of judicial partisanship could have enormous consequences. By reigniting the abortion controversy, conservative justices could seriously damage the Supreme Court’s reputation and make partisan divisions more intense.
