Roe Approaches Its Demise
Well, this is unprecedented. In a stunning move, the draft of a majority opinion of a tremendously consequential Supreme Court case was leaked to the public. This breach of the norms of confidentiality is shocking. But not as shocking as the draft itself. There are implied fundamental rights that rest in Roe that are now called into question. So, yes, it’s an earthquake that there was a leak, but that leak is intrinsically tied to the open threat on those rights we assumed were set in stone.
Norms are a fundamental concept in the social sciences because they are socially enforced rules or expectations (often unwritten!) that bind our society together. Emile Durkheim felt they were coercive in nature; they guide us and shape both our thoughts and behavior. This is a pretty powerful force. So, as we see individuals lament about the loss of norms with the Supreme Court breach, we should consider one question: why?
An argument could be made that since 1972, abortion rights have been a norm. A majority of Americans believe Roe should remain, and the court case has been strengthened several times in the last 50 years. Until it wasn’t. Slowly, states began chipping away at the fundamental rights protected in the case. Forced ultrasounds. Heartbeat bills. Waiting periods. Deadlines. The justices ruled that “undue burden” couldn’t be placed on the person seeking an abortion, and, yet, those burdens piled up, and the Court kept allowing them.
Durkheim argued that norms were the very essence of our social order; they were part of the social contract that kept society from descending into chaos. It’s interesting to note that soon after the draft was leaked, security put up large barricades around the Supreme Court building. They knew it would cause a shockwave. Durkheim would probably say they should have expected it; after all, people see access to abortion as a norm. When norms are blurred, we lose the predictability of our social contracts; it is harder to make sense of our world. I imagine there will be a strong, swift reaction to this news.
Justice Alito’s draft brings into question some of the norms that we consider part of our social contract. He argues that civil rights should be, “deeply rooted in history”. The problem with that argument, as any social scientist will tell you, is that we change, often dramatically, over time. What does history mean to Justice Alito? Obviously, it’s more than 50 years if he and the other justices feel they can overturn Roe based on that argument. Is it 54 years? After all, that’s when the Civil Rights Act of 1968 was passed. Is that not “deeply rooted in history”? What about the Civil Rights Act of 1964? The Voting Rights Act? Thirteenth Amendment? How far do we go back before these things are rooted in history? With this argument, if we go back far enough, one could presuppose that if you didn’t have civil rights at the founding, you shouldn’t have ever had them.
So, now we have a few problems on our hands. One, what other rights that are assumed to be “set in stone” could be reversed? That’s a scary, destabilizing thought for so many in our country. Two, if we can’t trust our social norms what happens? That is a frightening thought for social scientists because we know how important those norms are; they provide order in the chaos. If they are blurred, unclear, or simply not present, what happens?
The leak from the Supreme Court is certainly unprecedented, but I imagine the leaker felt the opinion needed to be seen. After all, it strikes down 50 years of legal precedent. It eschews all norms we have related to this issue. By focusing on the leak, we lose the big picture. It behooves us to imagine a society where women are criminalized for abortion, even in cases of rape or incest. A society where a miscarriage could be construed as a “home abortion”. A society where the number of abortions remains the same, but the number of women dying from them skyrockets. A society where there are two tiers: one for wealthy people who can afford this care, and one for those who cannot and are forced into parenthood when they are not ready. So, as we argue about a leak that damages the integrity of the Court, we need to be careful not to overlook the damage of the ruling itself.
If we anesthetize ourselves to this norm violation, where does it stop? It’s a question worth considering. There are a myriad of court cases that use a similar argument about privacy. Does it stop here? That question untethers us from the norms we so desperately cling to as a society. It’s a dangerous thing to take away rights. One thing is for sure, the world has changed. What remains to be seen is what it will look like on the other side.