By Samuel C. Damren
This is the first in a series of commentaries on the draft Supreme Court decision overruling Roe v. Wade.
The draft “Opinion of the Court” in Dobbs v. Jackson declares at page 5 “that Roe and Casey must be overruled.” Nearing the conclusion at page 65, the majority opinion by Justice Alito states “(w)e do not pretend to know how our political system or society will respond to today’s decision.” It is a remarkable statement for any court to make, much less the United States Supreme Court.
In rendering opinions across a wide spectrum of cases, courts routinely take into account responses to their decisions and what might happen in the future based on their decisions. Practicing lawyers must do likewise in advising clients.
The draft opinion begins by recognizing that “abortion presents a profound moral issue,” but does not follow up that line of thought with the equally undeniable observation that the differing answers of Americans to that issue are anchored in conflicting religious beliefs.
Nor does Justice Alito’s majority opinion acknowledge, much less discuss, the well documented desire of many Christian sects for a government ban on abortion in order to have their religious beliefs imposed on others; and, the equally fervent desire of those other Americans to resist the imposition of religious doctrine through state or federal law.
Since the Court majority believes it is beyond its abilities to assess how “our political system or society will respond” to a decision to overturn Roe v. Wade, let me provide some insight. If Roe v. Wade is overturned, the Dobbs v. Jackson case will be perceived by the overwhelming majority of Americans for what it is: a political submission by the Supreme Court to state governments whether to impose the religious beliefs of certain Christian sects in the form of state abortion laws on pregnant individuals who do not share those beliefs.
Members of Christian faiths which hold religious beliefs in conflict with Roe v. Wade, and wish their beliefs to be imposed on everyone else, will be elated. Americans who do not share those beliefs, and those who are concerned that pregnant individuals will be forced to bear unwanted children, will be devastated. They will regard the decision as opening the door to religious persecution by states which adopt such laws. They also will fear what additional authority the Supreme Court will next cede to the states to enact other religious laws or persecutions.
The immediate question of concern will be whether state sponsored religious laws prohibiting abortion will be enforced only against individuals who lack the resources to secure abortions elsewhere, or whether the Supreme Court might later extend the states’ reach to hold pregnant individuals residing in “Right to Life States” criminally liable if they flee to secure otherwise lawful abortions in “Free Choice States.”
Assessing how the American political system “will respond” to a decision to overturn Roe v. Wade is much less difficult because the near-term response is already in process.
In the draft opinion, Justice Alito states that the Court is returning “the authority to regulate abortion … to the people and its elected representatives.” More precisely, the draft opinion would “return” that authority to each of the 50 states for separate and independent determination by majority elected representatives in each of the states.
Consequently, the states will, and already have begun to, divide into Right to Life States and Free Choice States. The tensions between those states will rise and continue to rise just as they did between Slave States and Free States in our past. However, unlike that slow rise in temperature, tensions between states over abortion issues will rise quickly.
For 49 years, the states have been unable to deny a person their constitutional right, now firmly embedded in the national culture, to an abortion prior to fetal viability. The moment the Supreme Court overrules Roe v. Wade, there will be a rush in all states to decide issues they have not had to address for half a century.
When that immediate political crisis settles and the states divide into Right to Life States and Free Choice States, the next chapter in the then more defined political/religious dispute will begin.
Americans will find that by virtue of the state in which they reside, the regulation of a person’s liberty to control their pregnant body and the consequences to their life will be profoundly different. On one side of bordering states, abortion will be lawful. Over the border, it may be criminal and punishable by 99 years in prison.
To assess how a political system as a whole might respond to such a situation, history provides a guide.
There are many examples of consequences when religion is sought to be imposed on a population by a political system. One example involving Protestants and Catholics in the Holy Roman Empire in the 16th Century is analogous here.
The Empire was composed of fragmented territories with independent rulers and ranged from large dukedoms to cities. They were unified under a single head of state, Emperor Charles V, who was Catholic. The 1555 Peace of Augsburg sought to resolve longstanding conflict between Lutherans and Catholics residing in the Empire.
Since the formation in 1531 of a military and political alliance supporting Luther-inspired Protestants, known as the Schmalkaldic League, many Catholic rulers in the territories converted to the Protestant faith. Charles V waged war against the Schmalkaldic League with the goal of destroying Protestantism and re-establishing Catholic religious unity.
In 1547, he achieved victory over the Schmalkaldic League only to have Lutheran territories rally behind a newly formed Protestant League. After continued protracted and terrible conflict, Protestants and Catholics realized that neither side could ever achieve the religious unity of one faith across the Empire.
The method adopted to settle the conflict through the Peace of Augsburg was for the ruler of each territory in the Empire to decide whether the residents in his realm would practice either the Catholic or Lutheran faith. Residents who did not share the religion of their territorial ruler were expected to leave or conform as required.
In retrospect, the settlement was fundamentally unstable since many territories holding contentious and conflicting religious views existed in close proximity and others more distant routinely interacted under the umbrella of the Empire. Disputes over faith between residents of territories of different faiths inevitably broke out, and the Peace of Augsburg provided no workable mechanism to defuse those disputes.
The settlement also failed over time because many residents in realms whose ruler decreed a faith of the realm that they did not profess refused to leave the territory.
Religion had always been established as part of the body politic of the Holy Roman Empire, and the religious dispute posed by Protestant and Catholic factions could not be contained by the Peace of Augsburg. The Thirty Years War that followed all across Europe beginning in 1618 would forever change the European political order.
How will our political system respond to a decision to overrule Roe v. Wade and place the authority to regulate abortion with the states? The political system will pit the religious beliefs of Americans against one another across a checkerboard of states with irreconcilable beliefs now embedded in distinct cultures. That response, like the Peace of Augsburg, will be fundamentally unstable.
The checkerboard will give political form along the jagged and sharp edges of state borders to a contentious and ever intensifying dispute within the body politic over the imposition of religious values that had not previously been defined and established by conflicting state laws. That is the potential legacy of Dobbs v. Jackson that the country might now contemplate.
The next commentary in this series will address the question of whether the majority justices, pursuant to the Alito draft opinion, are correct in their view that the court “has no authority to let” possible knowledge of “how our political system or society will respond” interfere with, or enter into, the decision of whether or not to overrule Roe v. Wade.
I have a different view on the limits of authority for courts of final appeal than Justice Alito. It was set forth in an article titled “Stare Decisis: The Maker of Customs,” published in 2000 by The New England Law Review, and will be further discussed in the following commentary.
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