This is not just another setback.
Anyone who’s lived long enough has seen the Supreme Court issue a ruling they didn’t like. This is not that. No, what made the ruling that felled Roe v. Wade and its companion case, Planned Parenthood v. Casey, more than just another disappointment, what made it the judicial equivalent of a kick in the teeth, is, as Justices Sotomayor, Kagan and Breyer noted in a peppery dissent, the fact that this is the first time in history rights granted by the court have been rescinded.
There is a qualitative difference between not getting a thing you wanted and having a thing you already owned snatched away from you. That’s what happened last week to women of childbearing age with regard to the right to have an abortion. And the implications of that decision, awful as they are for those women, resonate far beyond them.
For all the years of the American experiment, the parameters of human-rights debate have plodded predictably, but inexorably, in one direction. There have been setbacks, yes, but always along a path of more freedom for more people. Take LGBTQ rights for example. In 2004, we were arguing whether gay people should have the right to be married. By 2014, we were arguing about who would bake the wedding cake.
Subtly, but perceptibly, the parameters move forward. Or they did. Last week, they moved back 50 years.
In the remarkably specious reasoning of the majority opinion authored by Justice Samuel Alito, women must surrender to the state the right to make decisions about their own reproductive health because that right is neither mentioned in the Constitution nor “deeply rooted in [our] history and tradition.” Justice Alito reaches as far back as the 13th century to illustrate this supposed failing.
Given that women were legally voiceless and defined as property of their husbands and fathers in the eras he cites, such reasoning is not only unpersuasive, but flat-out appalling. And considering that such rights as contraception, same-sex and interracial marriage are also of recent vintage and also not mentioned in the Constitution, one must logically fear that the limitations now being imposed on childbearing women will ultimately extend far beyond them.
Mr. Alito swears we have no cause for alarm, repeatedly claiming that, “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” Tellingly, he never explains why logic that applies to the right to get an abortion would not apply equally to, say, the right to buy condoms. Apparently, he can’t.
Meantime, Republican architects of theocracy are openly speculating about imposing further restrictions. Indeed, in his concurrence, Justice Thomas pushes the court to next curtail contraceptive and LGBTQ rights. The fact that conservatives seem to feel it’s time now to unfurl their bucket list offers superfluous evidence that this ruling is not logical, but ideological. As the dissenters put it, “The majority has overruled Roe and Casey for one and only one reason: because it has always despised them and now it has the votes to discard them.”
That’s not how the law is supposed to work. That it apparently works that way now testifies to the illness of this democracy. Progress has lurched backward, women losing a freedom on which they’ve relied for generations. The rest of us should be angry that their rights can be arbitrarily taken: We should also be concerned.
After all, it means that ours can, too.
Leonard Pitts Jr. (email@example.com) is a columnist for the Miami Herald.