The Supreme Court cannot be neutral on abortion

In one of the glorified blog posts used to overrule Roe v. Wade, Brett Kavanaugh filed one of the “love me, love me, love me, I’m only a moderate reactionary” concurrences that were the speciality of his former boss Anthony Kennedy. (My personal favorite is the “sure, perhaps constitutional provisions may have been violated by unspecified persons, but am I, as an Associate Justice on the nation’s top appellate court, supposed to do about it?” number he put out in Korematsu II.) Its core argument was the familiar one made by reactionary judges and Savvy pundits alike — that overruling Roe would “remove the Supreme Court from the abortion issue” and “turn down the temperature.” The problem is that it is obviously false:

When the Court released its opinion in Dobbs, Kavanaugh indeed voted to end the right to reproductive freedom, the task for which President Donald Trump had nominated him to the Court four years earlier. But in a concurrence, Kavanaugh returned once more to his favorite sets of buzzwords, reiterating his view that the Constitution is “neither pro-life nor pro-choice.” Although he professed to “greatly respect” those who disagree, the result in Dobbs, he concluded, “heeds the constitutional principle of judicial neutrality,” and “returns the issue of abortion to the people and their elected representatives.” In 12 pages, Kavanaugh extolled the virtues of “neutrality” 13 times. If his opinion were a high school civics essay, his teacher would have docked him points for repeating himself to hit the word count.

The majority opinion, written by Justice Samuel Alito, was similarly sanctimonious, if less performatively courteous to the people whose rights it erased. By overruling Roe and Casey, Alito wrote, the justices were extricating themselves from the messiness of setting abortion policy, and “return[ing] that authority to the people and their elected representatives.” 

I do not mean to surprise you here, but as it turns out, Kavanaugh and Alito were lying. Earlier this month, the Supreme Court allowed a draconian abortion ban in Idaho to take effect, blocking a lower court order that limited a pregnant person’s right under federal law to obtain abortion care during medical emergencies. (The case should not be confused with a different decision, this one out of the ultraconservative Fifth Circuit Court of Appeals, that similarly attempts to subjugate the health and safety of pregnant people to the whims of anti-choice state lawmakers.) The Supreme Court will hear oral argument in the Idaho cases, Moyle v. United States and Idaho v. United States, sometime in April. 

This term, the Court will also likely decide Food and Drug Administration v. Alliance for Hippocratic Medicine, a case in which homophobic blogger-turned-Trump judge Matt Kacsmaryk attempted to unilaterally invalidate the FDA’s 20-plus-year-old approval of mifepristone, which doctors often prescribe as part of a safe medication abortion regimen. Nationwide, medication abortions comprise more than half of abortions, and are especially important for people living in rural areas who lack easy access to a brick-and-mortar clinic. If allowed to stand, Kacsmaryk’s opinion would make it harder for pregnant people to obtain care, even in states where abortion is ostensibly legal. 

Dobbs, as framed by the justices who signed on to it, was supposed to be a principled transfer of lawmaking authority to “the people and their elected representatives.” Instead, it entrusted more of that authority to the likes of Matt Kacsmaryk, who is happy to exercise it as the men of the Dobbs majority would prefer. What is a little state-sanctioned misogyny among those claiming the mantle of vigilant defenders of democratic values?

My best guess is that Alito, a mendacious crank who does not care about the opinions of people who do not subscribe to Newsmax, knew exactly what he was doing here; I am a little less confident about Kavanaugh, whose desire to implement his preferred policy agenda occasionally clashes with his desperate need to be liked. But whether Kavanaugh is also a cynical misanthrope or merely a bog-standard mark is sort of beside the point. The silly premise of both of their opinions in Dobbs is that the Court could ever be “neutral” on the subject of reproductive freedom, a basic human right that Republican politicians and their deep-pocketed backers are constantly working to roll back. The justices have spent generations arrogating political power to themselves, reshaping the country’s system of three theoretically co-equal branches of government into a de facto juristocracy. They cannot suddenly rid themselves of any “contentious social issue,” abortion or otherwise, by snapping their fingers and rattling off a handful of bromides about the virtues of judicial humility.

Dobbs would be much more tolerable if it signaled a federal judiciary that was going to take on a much more modest role in American politics. Needless to say, the opposite is happening, and abortion will be part of that trend rather than an exception.