Comment By Jeannie Suk Gersen in the New Yorker: IN 2003, when the Supreme Court held, in Lawrence v. Texas, that criminalizing gay sex was unconstitutional, it insisted that the decision had nothing to do with marriage equality. In a scathing dissent, Justice Antonin Scalia wrote, “Do not believe it.” Then, in 2013, when the Court struck down the federal Defense of Marriage Act’s definition of marriage as being between a man and a woman, emphasizing the tradition of letting the states define marriage, Scalia issued another warning, saying that “no one should be fooled” into thinking that the Court would leave states free to exclude gay couples from that definition. He was finally proved right two years later, when the reasoning on dignity and equality developed in those earlier rulings led to the Court’s holding that the Constitution requires all states to recognize same-sex marriage.
Just as rights can unfold and expand, however, they can also retract and constrict in breathtaking ways, pursuing a particular strain of logic one case at a time. In the forthcoming decision in Dobbs v. Jackson Women’s Health Organization, the Court is widely expected to overturn or severely undermine its abortion-rights cases, Roe v. Wade and Planned Parenthood v. Casey. In fact, following the comments of the six conservative Justices at the oral arguments in December, the strength of this expectation has spurred state legislative efforts to proceed as if Roe were already gone.
A handful of states have passed laws, like the Mississippi law at issue in Dobbs, that ban abortion after fifteen weeks of pregnancy, in violation of precedents establishing that abortion cannot be banned before “viability,” at around twenty-four weeks. (On Thursday, Florida became the most recent.) Some of the laws have been blocked by the courts, but, if Mississippi prevails, the states expect to be free to enforce these bans.
Among the more restrictive bills currently under consideration across the country, more than a dozen emulate the Texas “heartbeat” law, which bans abortion after six weeks of pregnancy and allows only private citizens, not state officials, to enforce the ban. That provision insulates the law from being challenged as unconstitutional in federal court. The Supreme Court repeatedly declined to block the Texas ban, but did leave open a possible avenue to challenge it. In March, the Texas Supreme Court closed that avenue. More here.
