Roe is the Canary in the Coal Mine

Ketanji Brown Jackson will become the first Black female justice of the Supreme Court of the United States today. It is a profound honor: A path to a place in the history of American legal excellence, a career- and life-defining accomplishment worth lauding and celebrating out of, if nothing else, respect for one of our most hallowed institutions. Only months ago we predicted that a deeply worthwhile candidate like Jackson joining the Court would prompt emotive cheers of celebration.

But then again, binding precedent doesn’t seem to matter that much these days — and none of us, despite our untouched joy for Jackson, are cheering for the Supreme Court anytime soon.

The institution that awaits Jackson has lost any shred of residual respectability since her confirmation hearings earlier this year. The new justice will be joining an ideological court run amok; a farcical legal theatre full of jurists eager to abandon the respect for precedent they reportedly displayed when pressed by U.S. senators; a chamber dominated by staunch ideologues (and more than one man accused of sexual assault) that has refashioned itself as a dystopically intemperate, injudicious body.

A court that, when faced with the chance to uphold the groundbreaking and life-saving precedent established by Roe v. Wade in 1973, chose to disregard stare decisis as well as the views and health of millions of Americans.

Suffice it to say that we consider the right to abortion a fundamental one, implicit in the concept of liberty itself, and strongly agree with the three justices who, with “sorrow” dissented from the majority.

The right to reproductive care underlies many others. Bodily autonomy requires it. Equal participation in the workforce requires it. The status of the fetus may not be a trivial question for all, but the solution is not to give the government the right to settle a philosophical question it has no business answering, robbing individuals of their ability to make those private and intimate decisions themselves. As some conservatives look forward to challenging rights based in the now-eroded Fourteenth Amendment — such as the right to contraception and marriage equality — it becomes clear that Roe is the canary in a coal mine full of gaseous misogyny.

To suggest, therefore, that we are upset at the Court’s ruling in Dobbs v. Jackson would be as much of an understatement as to state that the ruling itself was moderately shaped by political leanings. We are furious at the loss of the right to reproductive care and abortion, indignant that the Court deemed it prudent — or perhaps politically expedient — to toss aside half a century’s worth of jurisprudence, outraged that a Harvard graduate like justice Neil M. Gorsuch lent his support to the effort. We are mourning the preventable maternal deaths and the destroyed potential and joy that we know will follow the ruling.

Yet above all — above all the anger and ire and grief — we are scared.

Our generation is experiencing the acute sense of dread that comes with being the first in a long time to realize that ours is a singularly precarious position within history. For the first time in decades, America’s youth will have to contend not with rising freedoms and new rights, but with the loss of freedoms they took for granted since birth. We will do so, depressingly enough, under the shadow of a filibuster and an unrepresentative Senate which make codified protection of the newly-discarded right to privacy extremely unlikely at the federal level.

In fact, barring radical change to our constitutional order — a pipe dream at best — an immediate, tangible improvement of the situation appears out of reach. If the arc of the moral universe is long, it certainly doesn’t seem likely to bend anytime soon; on the contrary, our timeline appears intent on worsening our collective standing one perverse ruling at a time.

Rights, we have learned, are never fought for and won, but merely fought for over, and over, and over again at a maddening Sisyphean pace. No progress comes without pushback in the United States, where liberty has been frequently met with a renewed zeal to oppress; no right is ever guaranteed. For that reason, we must be permanent watchdogs of our civil liberties. We cannot continue to defend our freedoms only when they are explicitly threatened.

As a New York Times editorial astutely pointed out, America remains unprepared for the onslaught that will follow the ruling, for its deep reverberations within the judicial world and beyond, and for its implications for modern-day life and society. We are at the dawn of a new era, of a new struggle.

The first of many battle sites are easy to spot. The fight for abortion rights is already playing out in state houses, congressional halls, and activist networks across America. We might feel like little more than powerless, protest-attending witnesses to these crucial early stages. The many Harvard students with political aspirations will surely have a role to play, but only in the coming years (or decades, frankly). In the meantime, however, it is Harvard itself that has both the ability and the duty to protect its affiliates.

President Lawrence Bacow: We urge you to step up to the challenge. Many of our peers and professors spend months every year in states which will soon restrict, if not outright criminalize, their right to choose. Harvard has the resources to reimburse our most vulnerable community members for abortion-related travel; Massachusetts, our home state, remains one of the safest reproductive rights havens and a dependable ally, having recently extended protections for out-of-state prospective patients and explicitly barred their extradition. We may disdain the administration’s general preference for political neutrality, but travel reimbursements fall well within the permit of politically neutral institutions. Countless major corporations of dubious moral spine have offered similar benefits to their employees. Fortune 500 companies are not exactly known for their social conscience — Harvard cannot fail to meet so low a bar.

Seventeen years ago, our predecessors on this very Editorial Board sounded the alarm about a relatively unknown Supreme Court nominee. In a scathing editorial, our peers called then-Judge Samuel Alito “a radical conservative and a terrible choice for the bench” who would, if given the chance, “overturn basic legal protections and reshape the scope of the U.S. government.” They highlighted, in particular, his disastrous record on reproductive rights.

We wrote then and reaffirm now: “The U.S. is a safer, healthier, and fairer place to live in than it was 50 years ago, due in large part to the Court’s affirmation of fundamental constitutional rights. Since then, civil-rights legislation, environmental protection, and legal abortion have contributed to the progress of our society. People who oppose such core rights and protections have no place on the Supreme Court.”

The majority opinion in Dobbs v. Jackson, penned by Alito himself, confirms our worst and longest-held fears about the reactionary takeover of the Court. We only hope that our current pessimism about the Court’s future impact, the lackluster odds of reform, and American democracy writ large doesn’t prove quite as prescient.

This staff editorial solely represents the majority view of The Crimson Editorial Board. It is the product of discussions at regular Editorial Board meetings. In order to ensure the impartiality of our journalism, Crimson editors who choose to opine and vote at these meetings are not involved in the reporting of articles on similar topics.

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