A Regrettable Position, Promptly Regretted

March 29, 2013 Current Commentary Comments Off
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Supreme Court justices who undermine their own institution’s authority are apt to regret their behavior later. Or maybe sooner. I expect this is already the case for the four card-carrying members of the high court’s liberal wing.

The four cheered last year when the state of Montana thumbed its nose at the Supreme Court’s 2010 decision in Citizens United. I doubt they are cheering now, however, as Montana’s neighbor North Dakota essentially declares itself exempt from the court’s holding in Roe v. Wade.

It ought to come as no surprise.

Montana took the position that the state’s history justified an exemption from Citizens United, which held that the government cannot restrict corporations or labor unions from spending their own money on political advertising. This direct challenge to the highest court in the land deserved exactly the response it received – a summary rejection of Montana’s case by the Supreme Court. That rejection ought to have been unanimous.

But it wasn’t. The liberals, led by Justices Ruth Bader Ginsburg and Stephen Breyer and joined by Justices Elena Kagan and Sonia Sotomayor, voted against rejecting Montana’s declaration of judicial independence. The liberal faction opposed Citizens United when it was decided, and having lost, encouraged Montana to relitigate the issue, even though the same five-member majority that decided Citizens United remained on the bench. The exercise was pointless except as a show of pique over the case they lost, and by their protest vote they acquiesced to Montana’s disrespect to the court.

What went around has now come around. Though not all of them have had a chance yet to rule in an abortion case, the same four justices are known or presumed to want to preserve, as much as possible, the right to abortion access that Roe v. Wade established nationwide in 1973. Now it is their position that is being blatantly disregarded.

North Dakota Gov. Jack Dalrymple this week signed into law the country’s most restrictive abortion measures. The three-bill package bans nearly all abortions once a fetal heartbeat is detectable, which can be as early as six weeks after conception. The law allows exceptions in situations where the mother’s life is in jeopardy, but not in cases of rape or incest.

North Dakota’s legislation follows on the heels of Arkansas’ ban on abortions after 12 weeks, which became law a few weeks prior, despite a gubernatorial veto.

Arkansas Gov. Mike Beebe, in vetoing that state’s bill, remarked that “Senate Bill 134 blatantly contradicts the United States Constitution, as interpreted by the Supreme Court.” Similarly, Paul B. Linton, a constitutional lawyer in Illinois, told The New York Times that North Dakota’s law and others like it “have no chance in the courts” when they are inevitably challenged.

We shouldn’t be surprised, however, that states are trying. This is what you get when you invite states to disregard Supreme Court rulings. North Dakota can at least point out that the justices who decided Roe are long gone and that the high court might be ready to revisit the topic. This was clearly not the case in Montana’s defiance of Citizens United. The liberals who are going to try to persuade their colleagues to treat Roe as settled law are going to be in a very awkward spot.

Laws like North Dakota’s are really only about access to abortion for people without other options. No place in North Dakota is more than a few hours by car from the Canadian cities of Winnipeg or Regina. Both have a variety of options for women who choose to terminate a pregnancy. These trips would not be convenient, but would not be much of an obstacle for those with the means to make them. Draconian as it is, North Dakota’s legislation will not prevent middle-class 30-year-olds from getting the care they want.

Instead, laws like North Dakota’s affect only women and girls who have few options. We are not debating access to abortion for most of the women of North Dakota; this debate is about access to abortion for someone like a 13-year-old rape victim on an Indian reservation. (The U.S. Justice Department reports that one in three Native American women is raped during her lifetime.)

In the best case, from the liberals’ perspective, North Dakota’s legislation will be blocked while the matter is litigated again. In the worst case, the liberals have invited their conservative colleagues to reopen Roe, and they may be extremely unhappy with the result.

Abortion-rights supporters invoke the principle of stare decisis to demand respect for Roe v. Wade. That position is severely undermined when those same individuals show a lack of respect for the current court’s rulings. The damage is greatest when the lack of respect comes from the court’s own members.


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