The Way Back

The overturning of Roe v. Wade, which has established federal protection of basic abortion rights for women for a half century, was no less a bombshell even though everyone saw it coming. For anti-abortion activists, it’s a moment many of them prayed and protested for, though they likely had more faith than rational expectation they’d see it happen.

For the majority of the country, though, despair has been the immediate response — and there’s really no way to mitigate that worldview. It is truly a monumental moment, the next great social experiment about to play out in real time, involving real lives.

But there’s no time for despair. It’s pointless and defeatist. The reality is that the right — it’s time to revisit the use of “conservative,” considering that the Republican’s old unofficial motto, “The government that governs best governs least,” is patently ridiculous in this new era of infringing on women’s human rights — has won this victory with fortitude and patience.

Friday’s decision is the result of decades of steady labor. The groundwork was laid via the Federalist Society for the aggressive takeover of the judiciary. Abortion opponents never stopped working at the state and local levels, never saw Roe as the final word. It took some blind luck, and more than a dash of ruthlessness, to secure three Supreme Court seats via a president who never won the popular vote, thanks to political aggression in the Senate, and bald-faced lies from high court nominees that soothed enough gullible gatekeepers to let the wolves in.

It’s cold comfort, but it’s a reminder: This all happened in a democratic system, sometimes using the structures in creative ways, but always staying focused on moving ahead, inexorably, one step at a time, within the law. Buried within this dark moment is the strategy to reverse it.

The Supreme Court has never looked so nakedly political in recent history. In the same week, it issued a ruling that says states should be able to decide what rights women have when it comes to abortion — and also said states cannot be left to decide if concealed carry laws are appropriate for their citizens. This is no longer a court meant to mediate the biggest questions of the day and issue wise rulings. It’s an arm of the same movement to push through a series of retrograde policies in all three branches of government.

And it’s far from over. Samuel Alito’s decision takes pains to say that the abortion ruling will be limited only to that singular issue: “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

But that’s ludicrous — and it’s not how the courts have ever worked. Count on a gleeful Clarence Thomas to give away the game: His concurrent opinion noted that the 14th Amendment’s granting of “liberty” no longer can be used to allow the right to an abortion, because it wasn’t part of the original wording of the Constitution, so a whole series of similar cases based on interpretation of “liberty” and the 14th Amendment are now in play: governing same-sex marriage and relationships, and contraception use even among married couples. (Surprisingly, he left one out: anti-miscegenation laws, which were eliminated based on the 14th Amendment, but now presumably could be back in play, God help us.)

A pregnant woman, depending on where she lives, no longer has equal rights: Her pregnancy now has the full backing of the state. Some states seem positively eager to show just how radically they will take a side. It will be chaotic. It will be ugly.

There’s no quick answer. Roe was a flawed “solution” that dropped everyone’s guard — stare decisis suggested the court’s decision 50 years ago took care of the heavy lifting in protecting women’s rights. We’ve learned, the hard way, that the work remains to be done, and it must be done today.

Democracy in action is the answer. Just as this was done, it can be undone. It means getting involved more at the local level, voting in every single election, asking the candidates difficult questions and demanding clear answers. Expecting action, not just words.

The Constitution has been updated 27 times via amendments, including 12 times in the 20th century. In a letter written in 1816, Thomas Jefferson noted that frequently changing “laws and constitutions” wasn’t something he favored, but he added that “institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as a civilized society to remain ever under the regimen of their barbarous ancestors.”

Perhaps, with two rulings in a week that demonstrate just how out of touch “Originalism” is with modernity, it’s time to acknowledge that our governing document lacks clarity. Instead of expecting courts to settle whether muskets are the same as AR-15s, and whether women are truly equal citizens, and whether it may be time to protect the majority from the tyranny of the minority, it’s time to put it all in writing. This living document is now on life support.

Change is always unsettling; sometimes it’s terrifying. American society requires every citizen to dispense with nihilism and find a new patriotism. The Fourth of July is next week, and that’s as good a time as any to remember: The U.S. Supreme Court can’t be counted on to protect basic freedoms. Congress is out of touch with its constituents because donors matter more than voters.

But your state and local officials will have the biggest impact on your life moving forward. This will become a more divided country, certainly, with some regions more focused on rights — human rights, women’s rights — than others. Be sure you live in the area you want to live in. Lobby for laws that protect rights, not take them away.

The recovery must start there. It’s not too late, but it will take time and perseverance. Start by voting, in every place your vote is counted, and don’t stop there.