Supreme Court justices are oblivious to human or political consequences of overturning Roe

The oral arguments in the U.S. Supreme Court last week left no doubt that Roe v. Wade is about to be overruled. Most striking was the obliviousness of the justices to the human and political consequences of doing so.

The case, Dobbs v. Jackson Women’s Health Organization, involves a Mississippi law that prohibits abortions after the 15th week of pregnancy. This is blatantly unconstitutional, as Roe v. Wade holds that states cannot prohibit abortion before viability, which is about the 24th week of pregnancy.

Although it’s clear that there’s a majority on the court to uphold the Mississippi law, it’s uncertain how they will do so. My sense was that Chief Justice John Roberts would prefer to uphold the Mississippi law without expressing an opinion on state laws that prohibit abortion even earlier, such as at the sixth week of pregnancy or at conception. But it seemed that the other five conservative justices — Thomas, Alito, Gorsuch, Kavanaugh and Barrett — are ready to explicitly overrule Roe now.

Even if the court took the Roberts approach, it would likely just be a short time before Roe would be expressly reversed and states could prohibit all abortions. Once the Supreme Court allows a state to prohibit abortions at the 15th week of pregnancy, there’s no reason why other states couldn’t do so at even earlier times, including from conception.

The most astounding questions during the oral argument came from Justice Amy Coney Barrett who said prohibiting abortion is not an undue burden on women because they can carry their pregnancies to term and then give the babies up for adoption. It’s absurd to say that forcing a woman to remain pregnant and become a mother against her will is not an undue burden.

When I was a freshman in college at Northwestern in 1972, a woman in my dorm confided in me that she had been the victim of a date rape at a fraternity house. Abortion was illegal in Illinois at the time. Carrying the pregnancy to term as a college student and giving up the baby for adoption was unthinkable to her. She was terrified to learn that she was pregnant and ultimately went through the harrowing experience of an illegal abortion.

I have had students and loved ones who were raped. If they became pregnant, telling them to carry the pregnancy to term and give birth would have enormously increased the horrors of an already unthinkable situation.

Of course, I respect women who make a different choice and decide to continue their unplanned pregnancies. But under the Constitution that’s a woman’s decision, not the state’s.

At oral argument, Justice Brett Kavanaugh said the matter should be left to the political process. This is wrong. For a century, the Supreme Court has held that the “liberty” protected by the due process clause safeguards a right to privacy. The court has said this includes protection for reproductive autonomy. Before Roe was decided, the court declared, “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

It’s impossible to comprehend the political earthquake that will follow Roe’s overruling. This will make abortion the dominant issue in our political system for years to come. Elections for city council, state legislators, state judges and members of Congress in so many states will focus on this issue.

But it is possible to imagine the impact on women’s lives. Countless women — those without the money to travel to states and countries where abortion is legal — will again be forced to face the cruel choice between an unwanted child and an unsafe back-alley abortion.