What Comes After <em>Roe</em>?
The Atlantic’s executive editor, Adrienne LaFrance, discusses a post-Roe America with two contributing writers. The legal historian Mary Ziegler and the constitutional-law scholar David French answer questions about what happens now that Roe v. Wade has been overturned. How will abortion bans be enforced? What will come of the legal and legislative battle moving to the states? And what other rights could the Supreme Court revoke?
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The following conversation has been edited and condensed for clarity:
Adrienne LaFrance: Mary, I want to talk about something you wrote in a recent article for us. You wrote that “if this decision signals anything bigger than its direct consequences, it is this: No one should get used to their rights.” Particularly in Justice [Clarence] Thomas’s concurrence, there’s a hint at where this could go. But I’m curious to hear what you were thinking about when you wrote that.
Mary Ziegler: Well, I think there were two sets of things I was thinking about. One involved methodology: The Court lays out a method for defining our constitutional rights based on what the Court describes as history and tradition. And that methodology, as Justice Thomas elucidates pretty nicely, could mean that a lot of rights we thought we had, we don’t really have.
Another set of things that was occurring were more institutional concerns. This Court has been, I think, more interested in undoing precedents it thinks were egregiously wrong, to use the Court’s words, and less worried about the kind of institutional commitments that come with adhering to old decisions or past precedent than other reports that I’m familiar with. You can go back to the 1960s-era liberal Warren Court where maybe that wasn’t true, but I think for all of those reasons, this is a Court that seems to be committed to its interpretive approach to the Constitution, and not really worried about institutionalist concerns about perceived judicial legitimacy or precedent, and committed to an approach to implied constitutional rights that if you were being logically consistent, would lead you to call into question a variety of constitutional rights.
So if this is how the Court is doing business, both from an interpretive standpoint and from an institutional standpoint, we just don’t know what’s going to happen next. I’m not here to tell you I know they’re going to take away this right or that right or any rights, but IRoe v. Wade I can tell you a lot of constitutional commentators would have said: “No way.” We’re living in a time where the Overton window is rapidly changing. And there are signs in the opinion itself that that’s true. And so, what I was thinking when I wrote that was just that anyone who can guarantee that they know what will happen next when it comes to this Court, I think is mistaken.
