December 3, 2021

The Right’s Court Packing Got Us Here; SCOTUS Reform is Needed to Preserve Constitutional Rights

Russ Feingold President

Russ Feingold
ACS President Russ Feingold

This was a tough week for all of us who care about constitutional rights and the legitimacy of our highest court. On Wednesday, we listened as the Supreme Court heard oral arguments in Dobbs v. Jackson Women’s Health, the case that increasingly seems poised to result in the overturning of Roe v. Wade. If there were doubts about this outcome going into Wednesday, it was hard to doubt it by the end of the day. We listened to each member of the conservative supermajority ask questions that clearly revealed an interest in, if not a naked desire to overturn nearly fifty years of Supreme Court precedent protecting pregnant people’s right to abortion.

It is unconscionable that today, in 2021, a majority of Supreme Court justices are likely preparing to wipe away nearly fifty years of women’s empowerment and rights. The right to abortion is the right to bodily autonomy and to make decisions about a person’s own body. This Supreme Court is seriously considering returning to the days when the state could make pregnant people prisoners in their own bodies, forcing them to carry out the wishes of the state.

Questions by Justice Amy Coney Barrett about whether safe haven laws, which enable parents to surrender children to the government, are an adequate alternative to abortion completely ignore the toll that carrying a pregnancy to term has on a pregnant person. Questions by other justices about reducing Roe’s prohibition on abortion bans before 24 weeks to just 15 weeks ignores the realities that confront many, many pregnant people. Eliminating nine weeks of abortion access would have enormous consequences.

According to the amicus brief that was submitted by economists and referenced during the oral arguments, Black women experienced a 28-40 percent decline in maternal mortality due to the legalization of abortion. Abortion legalization has also had a significant impact on women's wages and educational attainment, with impacts again most strongly felt by Black women. Banning abortion, or further restricting access to it, risks reversing these gains, sending this country back to the days when pregnant people resorted to using coat hangers, Lysol, bleach, and other potentially lethal substances to end pregnancies.

Justice Kavanaugh’s line of questions about how overturning Roe would not ban abortion because states could keep it legal simply ignores reality. Twenty-six states have laws already on the books that will ban abortion the moment that the Court overturns Roe. Overturning Roe will effectively ban abortion for millions and millions of people in this country, full stop.

And to be clear, if the Court strikes down the Roe viability standard and claims it is not "overturning Roe," it will be a lie. To strike down the central holding of Roe and reverse course will have the same devastating impact on people's lives and the same impact on the Court's credibility.

We mustn’t forget that the only reason we are here, where we fear the Supreme Court overturning nearly fifty years of constitutional precedent, is because of the Right’s packing of the Supreme Court. If not for such court packing, we would almost certainly not face this very grim reality where a constitutional right could soon be taken away from millions and millions of people.

The Justices are clearly concerned about how this case will impact the reputation and standing of the Supreme Court. I believe this is in part because of the growing momentum behind Court reform. Reform is not an abstract idea, but a very real necessity, all the more so if this Court defies history and its own precedent and sends us back to the dark ages of abortion bans.

Justice Sotomayor asked the Mississippi Solicitor General, “Will this institution survive the stench that [overturning Roe] creates?” I believe the answer is definitively, no. Justice Sotomayor went on to highlight that Mississippi’s decision to ask the Court point blank to overturn Roe v. Wade came only after Justice Ruth Bader Ginsburg passed away last year and Justice Amy Coney Barrett was confirmed. Mississippi changed up its request of the Court when it believed it finally had five justices willing to overturn Roe. This political calculation just highlights the partisan agenda at work here. The Supreme Court’s credibility is already in peril. Overturning Roe will confirm that this conservative supermajority is driven not by law or precedent, but by a partisan agenda.

When we say courts matter, this is what we are talking about, in the most harrowing of terms. We are unlikely to know the outcome of Dobbs until next summer, but we are not waiting until then to take action. We will continue to advocate for reproductive rights and for Supreme Court reform. Visit our website for more information on our work and how you can help.