Although Monday’s U.S. Supreme Court abortion ruling applies only to a restrictive law in distant Louisiana, the case shows how tenuous federal protections for abortion rights have become.
The 5-4 decision swung on Chief Justice John Roberts, who explained his surprising support as abiding precedent. The decision tosses out a Louisiana law deemed likely to shutter all but one clinic in that state to get an abortion. But Roberts is no reliable ally for abortion rights. Just four years ago, he voted to uphold a Texas law that was nearly identical, and lost.
In the new case, he cited the principle of giving great weight to precedent, meant to keep the court from being whipsawed by political swings. Roberts showed wisdom in embracing that principle, rather than leveraging President Donald Trump’s appointees to reverse the recent Texas ruling. Roberts reached back to the nation’s founders, quoting Alexander Hamilton’s instruction to “avoid an arbitrary discretion in the courts.”
That’s better advice than Roberts received from Washington’s Republican members of Congress in this case. U.S. Reps. Cathy McMorris Rodgers and Dan Newhouse displayed a stunning disregard for this bedrock legal principle by signing a January legal brief — endorsed by Rep. Jaime Herrera Beutler — urging the Supreme Court’s conservative majority to seize the moment and enable abortion bans.
Voters should remember this attack on decades of federal and state abortion protections even though it fell short. The 1973 Roe vs. Wade finding of a Constitutional right to privacy — which includes reproductive decisions — endures only because the nation’s highest court has not overturned this legalization.
The dissenting opinions Monday showed eagerness to allow states to erode abortion access, purportedly in the name of women’s safety, or, as Justice Clarence Thomas wrote, simply because he finds “farcical” the idea the Constitution protects reproductive choice.
The people of Washington found otherwise. In 1991, they voted into law Initiative 120, guaranteeing equitable access to early-term abortion under “a fundamental right to privacy.” The Legislature has supported that initiative’s principles, including a 2018 law that requires insurers covering maternity care to cover abortion, too.
That’s good for Washingtonians, but the right to choice cannot fairly be constrained by state lines. U.S. Sen. Patty Murray, D-Wash., sized up the moment eloquently after the decision was announced. “The fight is far from over,” she said in a statement, “because we cannot accept that for too many in our country, abortion rights are rights in name only and not in practice.”
Monday’s decision protects, for now, the heavy-handed restrictions by lawmakers whose real goal is to end abortion outright. While the moment is worth celebrating, Washington’s voters should regard the evolving scene warily.
©2020 The Seattle Times