Abortion and the Supreme Court: An American tragedy

If William Shakespeare were alive today, he would likely write a play about abortion rights and the Supreme Court of the United States (SCOTUS). Consistent with Shakespeare’s preference for short titles, the play might be called “Tragedy Supreme.”

The first act opens in October 1972 with Supreme Court justices in a conference room. Justice Harry Blackmun might ask, “Why did we ever agree to take Roe v Wade? We’re not physicians, ethicists, or specialists on when life begins within a woman’s uterus. We’re just lawyers!” 

Justice Thurgood Marshall quips, “Double, double toil and trouble; Fire burn and cauldron bubble,” with Justice Lewis F. Powell adding, “First thing we do — let’s kill all the lawyers.” They all laugh, then quietly review their papers. 

The second act opens on Jan. 22, 1973, when SCOTUS announces its landmark decision in Roe v Wade. In a 7 to 2 decision, Blackmun, writing the majority opinion, finds the restrictive Texas regulation of abortion unconstitutional.

Justice Blackmun summarizes the opinion by saying the court finds that a set of Texas statutes criminalizing abortion in most instances violated a woman’s constitutional right of privacy, which it found to be implicit in the liberty guarantee of the due process clause of the Fourteenth Amendment.

The third act opens in the spring of 1992, with SCOTUS, now composed of eight men and the first woman, in a conference room. “Twenty years ago,” Blackmun says, “I thought we settled this issue of abortion. Why are we looking at the case of Planned Parenthood v. Casey?”  

Justice William Rehnquist says their decision is to be based on “the Constitution and the laws of the country,” not on gender perspectives, religious views, political preferences, nor personal passions. The other justices nod in agreement.

The fourth act opens on Jan. 22, 1992, when the court announces its decision in Planned Parenthood v. Casey. In a 5 to 4 decision, the court reaffirms Roe, but adds a new standard.

With Justices Sandra Day O’Connor, Anthony Kennedy and David Souter writing the majority opinion, the decision is summarized: The court reaffirms Roe v. Wade, but are imposing a new standard to determine the validity of laws restricting abortions. The new standard asks whether a state abortion regulation has the purpose or effect of imposing an ‘undue burden,’ which is defined as a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.

The fifth act opens in April 2022 with the justices in a conference room discussing Dobbs v. Jackson Women’s Health Organization. That case concerns Mississippi’s ban on most abortions after the 15th week of pregnancy.

Chief Justice John Roberts begins by calling the leaked abortion decision “Absolutely appalling.” He added, “If the person behind it thinks that it will affect our work, that’s just foolish.” 

Justice Samuel Alito notes that abortion is not the same as other unenumerated rights because it destroys a “potential life.”

In response, Justice Stephen Breyer says, “This court, in the course of a generation, has determined and then redetermined that the Constitution offers basic protection to the woman’s right to choose.”

Justice Clarence Thomas says the Supreme Court can’t be “bullied,” adding, “We are becoming addicted to wanting particular outcomes, not living with the outcomes we don’t like.” He notes his position has been consistent, having voted to overturn Roe in 1992. 

Justice Elena Kagan interjects, pointing out that to overturn a long-standing precedent, “usually there has to be a justification, a strong justification.” 

Alito continues by calling Roe “egregiously wrong,” saying the right to abortion is not explicit in the Constitution’s text and is “not deeply rooted in this nation’s history and tradition.” He says “abortion presents a profound moral question. The Constitution does not prohibit the citizens of each state from regulating or prohibiting abortion.”

With Justices Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, and Thomas nodding their heads in agreement, Kavanaugh says the problem is that “you can’t accommodate both interests. You have to pick. That’s the fundamental problem.” He continues, “Then the question becomes, what does the Constitution say about that?”

Justice Gorsuch expresses concerns about procedural issues. “I do not care if the case is about abortion or widgets or anything else.”

Justice Sonia Sotomayor wonders if overturning Roe poses an existential threat. “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” 

Justice Barrett asks, “Why don’t the safe-haven laws take care of that problem?” She adds, “The court is not comprised of a bunch of partisan hacks.”

Justice Roberts says while the leaked document is an “egregious breach of trust” it is not the final text. He says in Dobbs v Jackson, “The thing that is at issue before us today is [Mississippi’s law banning abortion after] 15-weeks,” not whether to overturn Roe v Wade or not. 

The conservative justices show little interest in that approach. Justice Alito says, “The only real options we have” are to reaffirm Roe or to overrule it.

The play’s sixth act awaits SCOTUS’s decision on Dobbs v. Jackson. However, several things appear clear currently.

First, most Americans, approximately 70 percent, would not like to see SCOTUS overturn its 1973 Roe decision. And this has been the case over the past five decades.

Second, overturning Roe would contribute to the widespread belief that America’s highest court is motivated by politics and religious beliefs rather than law. Currently, a small proportion of Americans,  14 percent, have a lot of confidence in SCOTUS.

Third, President Biden has urged Congress to codify the right to abortion. Congress, however, has not been able to pass such legislation.

Fourth, if SCOTUS overturns Roe, the country will become a patchwork of abortion laws and a myriad of enforcement regulations. Thirteen states have “trigger laws” that would make abortion unlawful, with Oklahoma banning abortion from the moment of conception. And some 16 states and Washington D.C. have laws ensuring abortion rights.

Whatever SCOTUS decides regarding abortion rights, if Shakespeare were alive today, he would see what’s unfolding and conclude “Tragedy Supreme” is a drama well worth penning.

Joseph Chamie is a consulting demographer, a former director of the United Nations Population Division and the author of numerous publications on population issues, including his book, “Births, Deaths, Migrations and Other Important Population Matters.”