Opinion | Distinguished persons of the week: These women gave us a tutorial in constitutional law - The Washington Post

Supreme Court Justice Sonia Sotomayor can count. She knows there are at least five justices ready to uproot abortion precedents simply because they can. But she is not willing to let them cloak their constitutional wrecking ball as an instrument of legitimate jurisprudence.

Throughout oral arguments on Wednesday concerning the constitutionality of Mississippi’s abortion ban, Sotomayor underscored what the majority of right-wing justices were up to. There is no new set of facts to justify a reversal of such magnitude, she argued. “What has changed in science to show that the viability line is not a real line, that a fetus cannot survive? And I think that’s what both courts below said, that you had no expert say that there is any viability before 23 to 24 weeks.”

When Mississippi’s counsel suggested his side should win because abortion is not mentioned in the Constitution, Sotomayor schooled him in Con Law 101:

Counsel, there’s so much that’s not in the Constitution, including the fact that we have the last word. Marbury versus Madison. There is not anything in the Constitution that says that the Court, the Supreme Court, is the last word on what the Constitution means. It was totally novel at that time. And yet, what the Court did was reason from the structure of the Constitution that that’s what was intended.

And, here, in [Planned Parenthood v. Casey] and [Roe v. Wade], the court said there is inherent in our structure — that there are certain personal decisions that belong to individuals and the states can’t intrude on them. We’ve recognized them in terms of the religion parents will teach their children. We’ve recognized it in — in their ability to educate at home if they choose. They just have to educate them. We have recognized that sense of privacy in people’s choices about whether to use contraception or not. We’ve recognized it in their right to choose who they’re going to marry. I fear none of those things are written in the Constitution. They have all, like Marbury versus Madison, been discerned from the structure of the Constitution

Right-wing extremists on the court, she made clear, intend to rip out decades of constitutional law that rests on the presumption there are certain vital interests, including decisions about reproduction, that must remain beyond the power of government. If right-wing judges decide to attack that constitutional architecture, the right to make decisions about your children’s education or the right to contraception may be next.

Nor was Sotomayor going to let the court majority get away with simply assuming the fetus has a claim to personhood. “How is your interest anything but a religious view? The issue of when life begins has been hotly debated by philosophers since the beginning of time,” she said to Mississippi’s attorney and her colleagues. “It’s still debated in religions. So, when you say this is the only right that takes away from the state the ability to protect a life, that’s a religious view.” In making the argument, she revealed the degree to which the right now seeks to use the power of government to impose its religious views on the rest of the country.

Julie Rikelman, counsel for the abortion clinics, and U.S. Solicitor General Elizabeth B. Prelogar, similarly displayed their constitutional prowess. Chief Justice John G. Roberts Jr. wanted Rikelman to buy into some dividing line other than viability. She wasn’t having any of it. “States will rush to ban abortion at virtually any point in pregnancy,” she explained. “Mississippi itself has a six-week ban that it’s defending with very similar arguments as it’s using to defend the 15-week ban.”

And when Roberts tried to raise international law (grossly hypocritical, given conservatives’ insistence that foreign law is irrelevant in their decision-making), Rikelman informed Roberts that his understanding of other countries’ abortion laws was just plain wrong. “The majority of countries that permit legal access to abortion allow access right up until viability, even if they have nominal lines earlier,” she told him. “So, for example, Canada, Great Britain and most of Europe allows access to abortion right up until viability, and it also doesn’t have the same barriers in place.”

When Justice Amy Coney Barrett suggested there was no undue burden because women could give up a child after enduring nine months of pregnancy and childbirth, Rikelman patiently answered: “Pregnancy itself is unique. It imposes unique physical demands and risks on women and, in fact, has impact on all of their lives, on their ability to care for other children, other family members, on their ability to work." She added, "And, in particular, in Mississippi, those risks are alarmingly high. It’s 75 times more dangerous to give birth in Mississippi than it is to have a pre-viability abortion, and those risks are disproportionately threatening the lives of women of color.”

Prelogar also refused to let the court ignore the enormity of its judicial appetite. “If this court renounces the liberty interest recognized in Roe and reaffirmed in Casey, it would be an unprecedented contraction of individual rights and a stark departure from principles of stare decisis,” she said. “The court has never revoked a right that is so fundamental to so many Americans and so central to their ability to participate fully and equally in society. The court should not overrule this central component of women’s liberty.” But that’s precisely what right-wing justices intend to do — because they have the votes.

Justice Samuel A. Alito Jr. badgered her to admit that the court could simply reverse precedent if it wanted to. Nope, Prelogar replied, “It has always applied the stare decisis factors and likewise found that they warrant overruling in that instance. …
And Casey did that. It applied the stare decisis factors. If stare decisis is to mean anything, it has to mean that that kind of extensive consideration of all of the same arguments for whether to retain or discard a precedent itself is an additional layer of precedent that needs to be relied on and can form a stable foundation of the rule of law.” The blatant disregard of precedent shows that rather than “conservative,” this crop of Republican-appointed justices want to be free from the constraints of the past to fulfill the social agenda of “their side.”

Prelogar was blunt about what was at stake: “With respect to this specific right to abortion, there are also profound liberty interests of the woman on the other side of the scale in not being forced to continue with a pregnancy, not being forced to endure childbirth and to have a child out in the world.” She added, “the state’s arguments here seem to ask this court to look only at its interests and to ignore entirely those incredibly weighty interests of the women on the other side.”

Sotomayor, Rikelman and Prelogar certainly do not expect the right-wing justices to give up their partisan agenda. But these women will not permit them to pretend they are acting like judges. They want everyone to understand that these radical justices are doing something monumental and unique in the annals of American law. These judicial imperialists will be forced to own their handiwork and the blowback that comes from enraged Americans who realize Supreme Court jurisprudence has become a farce.

source: https://www.washingtonpost.com/opinions/2021/12/05/distinguished-persons-week-these-women-gave-us-tutorial-constitutional-law/

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