United We Stand, Divided We Fall: The Impact of Recent Supreme Court Decisions

Reactions to the recent Supreme Court decisions regarding gun rights and abortion rights, along with the rights of private religious schools to receive public funding and legitimate school prayers, reflect the deep cultural divide that exists in America today.  Pro-life advocates are celebrating the Court’s abortion decision while supporters of women’s reproductive rights are lamenting this overturning of Roe v. Wade that has been in place for the past fifty years.   Those who believe firmly in the Constitutional right of every citizen to own guns were equally pleased with the Court’s decision to deny a state the right to restrict gun ownership and use.  At the same time, those who believe that ongoing cases of gun violence in America necessitate the enactment of stricter gun laws see the Supreme Court being out of step with the majority of us who support sensible gun regulations.  The lesser publicized decision about the right of religious schools to receive public education funding and permission for school prayers is likewise being celebrated by some while being seen as mistaken by others.  These differing reactions to recent Supreme Court decisions reveal the hyper-partisan and polarized attitudes that exist among us today about preserving individual freedoms, Constitutional rights, moral values, law and order, the separation of church and state, and what promotes the general welfare of the entire nation.  

The Supreme Court decisions on abortion and guns provide not only a conservative legal perspective on Constitutional liberties but also on state’s rights.  With respect to abortion, the majority of the SCOTUS has reversed an earlier Court decision about a woman’s right to determine the need to have an abortion and leaves it up now to individual states to determine their restrictions on abortion.  With respect to guns, however, the Court decided to limit what states can do to regulate the Constitutional right to keep and bear arms. The effect of these rulings will now be played out at the state level where are at least 11 states have already put in place “trigger laws” to make abortions illegal in those states, with another dozen or so states likely to enact similar legislation.  In terms of guns, a number of states will now have to contend with challenges to their laws that restrict guns in some measure.   In those states where the dominant political leadership is pro-life, those of us committed to the right of women to have an abortion will be left scrambling to find the necessary resources to help women travel to states that continue to permit abortions.  Meanwhile, the Court’s ban on abortion is out of step with the consensus public opinion in America that abortion should be an option in cases of rape, incest, or dangerous medical conditions for mother and child.  The same seems to be true with regard to the Court’s restriction on gun laws passed by numerous states. 

Many of us now worry that the Supreme Court’s conservative majority with their originalist interpretation of the Constitution might also reverse other modern legal decisions that have expanded the rights of women, homosexuals, and other minority groups in America over the past 70 years.   In his majority opinion on abortion, Justice Alito claimed that the Dobbs ruling was limited only to overturning the right to an abortion.   He attempted to put a boundary around the potential legal implications for other non-Constitutional rights by stating that “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion” and by claiming that “abortion is a unique act because it terminates life or potential life.”  Some of us could argue that the death penalty is also a “unique act that terminates life” but is permissible as an act of state sanctioned revenge.  In their dissenting opinion, the minority of justices argued that there is no liberty interest in abortion because history did not recognize such an interest. The same can be said for a host of other matters, including Supreme Court decisions that overturned laws banning same-sex intimacy, allowing same-sex marriage, recognizing interracial marriage, and establishing a right to contraceptive use.  As the minority opinion in the Dobbs case noted “if the majority is right in its legal analysis, all those decisions (by the Court in past years) were wrong, and all those matters properly belong to the States too”.  Their worries about this abortion decision by the majority were underscored by Justice Thomas’ majority concurrence in which he said the same reasoning used to overturn the right to abortion should be applied to reverse other ‘demonstrably erroneous decisions,’ particularly Griswold (the right to contraception), Lawrence (overturning laws against same-sex relations), and Obergefell (the right to same-sex marriage).  In contrast to the conservative majority, the liberal side of the SCOTUS recognizes that laws often evolve with shifts in cultural moral values that go beyond the original intent found in the Constitution, as can be easily seen in the Court’s historical evolution about rights and laws regarding slavery, racial segregation, and racial discrimination.

Numerous explanations have been given for what appears to be a heavy emphasis in the SCOTUS on individual rights granted in the Constitution as opposed to liberties not specified in any clear manner that is therefore not protected or sanctioned.  Some point to the legal difficulties that arise when liberal federal courts are asked to rule on laws created by conservative states.  Others suggest that our entire nation has been indoctrinated for the past four decades with an ideological penchant toward individual rights and liberties that has eclipsed commitments to the general welfare of all.  Some ultra-right Republican politicians claim that the acceptance of abortion, same-sex marriages, and opposition to prayer in schools are a sign of moral decay in our nation requiring restoration of religion.  Whatever the reasons, our country appears to be deeply divided around how we are to maintain and preserve a healthy political balance between individual liberties and the common good of society as a whole in a pluralistic era with greater tolerance for human rights.   I am among those who believe the Supreme Court’s latest decision on abortion portends even more divisions at the state level over contentious political and legal issues that reflect deeply partisan interests and moral commitments.  At some point, we will have to ask ourselves what it means for us to be “The United States of America”, especially when states continue to exhibit power politics aimed at advancing one partisan agenda or moral standard in opposition to others.     Already pro-choice states, organizations, and corporations are contemplating ways to provide abortion services for those who live in anti-abortion states.   While many of us appreciate the right to own guns for self-protection, hunting, and sport shooting, the hardline conservative political resistance to removing military assault weapons, requiring comprehensive background checks on all gun purchases, and gun licensing all seem to ignore appropriate government regulations within Second Amendment rights and fail to enhance public safety in an era of increasing mass shootings.  As one who values the role of constructive religion in the civic life of our nation, the moral self-righteousness of evangelical and fundamentalist Christianity has often ignored and even perpetuated the larger social sins of racism, sexism, and homophobia that have plagued our nation for generations.  Moral convictions based on shared notions about the will of God or the love command of Jesus lack the same level of clear consensus in the U.S. today that our often-competing political ideologies seem to reflect.

The preservation of democracy in America suggests to me that we have to find ways to move beyond the current cultural wars that are raging in many of our established institutions which have now been exacerbated by the latest Supreme Court decisions.  Otherwise, we may be increasingly headed towards another social, moral, and political fracture in our nation like what occurred over the issue of slavery in the mid-nineteenth century.   Washington Post columnist, David Ignatius, noted recently that in today’s hyper-partisan environment, “Nearly every American, whatever their political perspective, has a foreboding that the country they love is losing its way”.   Perhaps the most troubling aspect of the Supreme Court’s ruling about abortion can be found in the polar opposite reactions this exists among us to this legal decision and what these reactions reflect about the loss of our national identity, our divisions over complex moral issues, and our inability to respect and tolerant the political differences among us.

Practically speaking, this Supreme Court ruling to overturn Roe v. Wade moves the pro-life versus pro-choice debate down to the states to sort out their own legal stances on abortion.  In hopeful anticipation of the SCOTUS ruling, thirteen states have already developed so-called “trigger laws” that will take effect from this Dobbs v. Mississippi ruling.  Another thirteen states are expected to address abortion laws in the near future.  Some of these 26 states have multiple types of bans already in place, including nine states with pre-Roe bans still on the books, and 11 states with early gestational age bans blocked by court orders. In states with multiple bans, state officials will determine which ban to enforce if Roe is overturned.  The absolute rigidity toward abortion among many pro-life advocates can be seen in the lack of allowances for victims of rape or incest in Alabama, Arkansas, Florida, Kentucky, Louisiana, Missouri, Oklahoma, Ohio, South Dakota, Tennessee or Texas.  As most pro-choice advocates suggest, the desire of women from these states to seek legal and medically safe abortions will now create a network of abortion pipelines for women to travel to those states where abortion is still legal.  Already women’s health organizations and some corporations are making plans to help women seeking abortions find the health care they need.  The consequences that will arise from this ban on abortions readily embraced in some states and resisted in other states only add to the fragmentation of our nation around culture war issues and competing ideological viewpoints about what is best for the United States of America.  Unless we can find more constructive ways to deal with these complex social, moral, and cultural differences respectfully and collaboratively this weaponizing of our political and legal institutions will only divide us more as a nation and eventually lead to our demise.