Among Americans who are not politically conservative, the death of Supreme Court Justice Ruth Bader Ginsburg and her pending replacement evoke anger and despair. A court with an impregnable 6-3 conservative majority is likely to roll back all sorts of rights and protections, leaving many people at risk.
The most obvious likely casualty is the court’s 1973 decision granting constitutional protection to a woman’s right to abortion. Four justices voted this year to allow a highly restrictive Louisiana law, and Donald Trump’s next appointee is almost certain to provide the fifth and decisive vote for that option. Roe v. Wade has as much chance of surviving as a sandcastle in a tsunami. States, we can assume, will soon be free to ban most if not all abortions.
But all is not lost for women’s reproductive rights. That’s because the Supreme Court is the last word only on constitutional questions. It is likely, sooner or later, to rule that there is no constitutional right to abortion. But there is no constitutional right to all sorts of things that federal and state governments provide, from public parks to health care coverage. Those exist because Americans want them.
Several states have passed laws to preserve abortion rights, even if Roe is overturned.
Should Democrats win the presidency and gain control of the Senate, added to their existing control of the House, they could enact a federal statute preserving access to abortion. Sen. Elizabeth Warren, D-Mass., proposed one during her presidential campaign, and rivals Sen. Kirsten Gillibrand, D-N.Y., and Cory Booker, D-N.J., endorsed the idea.
If and when the court overturns Roe, the legislation would get a huge boost. Americans have conflicting feelings about abortion, but most describe themselves as “pro-choice” rather than “pro-life,” and don’t favor discarding the 1973 ruling.
A federal measure would make state bans moot because federal law preempts state laws. Such legislation could even be an improvement on the status quo. The Supreme Court has upheld some state laws that make it more expensive or cumbersome to get an abortion: waiting periods, mandatory counseling, parental involvement rules and bans on some late-term procedures. Congress could sweep these obstructions away.
A federal law, of course, would be challenged in court as an unconstitutional intrusion on state powers. But the court has long recognized the right of the federal government to regulate anything that has the slightest connection to “interstate commerce” — which abortion clearly does.
Any court that would abandon a Supreme Court decision protecting abortion rights might be tempted to strike down a statute protecting them. But Jonathan Adler, a libertarian-leaning conservative law professor at Case Western University, told me: “It would be hard to deny Congress the power to regulate here without also cutting back congressional power in other areas. And if a federal law protecting abortion rights were unconstitutional, laws like the federal partial-birth abortion ban would likely be unconstitutional too.”
Abortion is not the only realm where democracy can undo what the court does. In 2013, a 5-4 majority led by Chief Justice John Roberts overturned a section of the Voting Rights Act of 1965, which required some states (mostly in the South) to get federal approval (“preclearance”) of any changes in voting laws. The rule was designed to prevent racial discrimination in places where it had been rampant.
The court said the policy was unfair because it singled out some places based on evidence dating to the 1960s rather than on “current conditions.” But last year, the House approved a bill creating new standards for preclearance based on more recent voting rights violations — which would apparently satisfy the justices’ demands.
The court has repeatedly ruled that partisan gerrymandering, which many Republican legislatures have used to disadvantage Democrats, doesn’t violate the Constitution. But University of Chicago law professor Geoffrey Stone says, “It might not hold that it is unconstitutional for the federal government to prohibit gerrymandering.”
There is no doubt that a more conservative Supreme Court would be a threat to all sorts of worthwhile initiatives and valuable liberties — the Affordable Care Act, environmental safeguards, reproductive freedom, access to the ballot box and more. But voters can circumvent the court on many issues by electing people who will advance their priorities, starting with Joe Biden.
The confirmation of a conservative justice to replace Ginsburg would close off one path to progress for years to come. But democracy offers an alternate route.
