Opinion: This Supreme Court will gut Roe vs. Wade as only these justices can

The justices of the U.S. Supreme Court sit for a group photo on April 23.
The justices of the U.S. Supreme Court sit for a group photo on April 23.
(Erin Schaff / Associated Press)

Good morning. I’m Paul Thornton, and it is Saturday, Dec. 4, 2021. Let’s take a look back at the week in Opinion.

You might have heard this week that the U.S. Supreme Court strongly indicated it will soon overturn Roe vs. Wade, the landmark 1973 case that determined the Constitution protects a woman’s right to an abortion, and the decision that seemingly all conservative jurists nominated to the high court feign agnosticism over to appease the likes of Maine Sen. Susan Collins, a pro-abortion-rights Republican. The good news is that the court probably will not outright invalidate Roe when it does decide Dobbs vs. Jackson Women’s Health Organization, the case involving Mississippi’s ban on abortion after 15 weeks of pregnancy, long before a fetus can remain alive outside the womb.

The utterly devastating news is that the justices do not need to explicitly overturn Roe to allow Mississippi’s grossly unconstitutional law to stand, and they seem poised to shred their credibility and invite anti-abortion state legislatures to accelerate their sadistic push to close the window for women to obtain safe and legal abortions. That they’re almost certain to allow states to continue on this radical course while professing faith to precedent and the Constitution instead of politics adds injury to just more injury. Two great progressive legal minds took to our op-ed page to explain how.

Erwin Chemerinsky, dean of the UC Berkeley School of Law, explains how the court could gut Roe without overturning it:


“I think the most likely outcome will be for the court to uphold the Mississippi law without explicitly stating that it is overturning Roe — even though that is exactly the effect. Once the court says that a state can prohibit abortions before viability, it has demolished the central holding of Roe — leaving nothing to stop states from banning all abortions.

“This will encourage states with conservative governments — and 23 states have both a Republican-controlled legislature and a Republican governor — to adopt laws prohibiting abortions even earlier than Mississippi’s 15-week ban. This year, for example, four states (Idaho, Oklahoma, South Carolina and Texas) adopted bans on abortion at six weeks of pregnancy with very limited exceptions. Both Arkansas and Oklahoma enacted legislation that bans abortion at any point in pregnancy, except when the woman’s life is endangered. ...

“The central question concerning abortion is who should decide whether a woman can terminate a pregnancy. For almost 50 years, it has been a woman’s right to decide before viability. Upholding the Mississippi law would hand that decision over to government and take away the fundamental right to reproductive freedom.”

Columnist Harry Litman, a former U.S. attorney, warns of a bleak outcome:

“The upshot is this: A splintered court would be left to adjudicate case by case ever more draconian restrictions with no principle to apply. Conservatives assail Roe and Casey as unprincipled, but those cases drew lines grounded in medicine and roughly workable in practice. The new, supposed middle ground that the court is telegraphing would leave the justices open to a valid charge of ad hoc and nakedly unprincipled reasoning.

“As for American women, they would find their liberty and rights subjected to state by state caprice in a way that the court has said for more than 50 years the Constitution forbids.


“All in all, Dobbs is likely to do a tidal wave of damage that, to make matters worse, the court will feign to be a ripple.”

The Supreme Court can’t pretend that overturning Roe vs. Wade would be anything but political. The Times Editorial Board is blunt about what’s really motivating the court’s conservative majority: “If the justices overturn the precedents in [previous] cases or take away the right to an abortion up to the point of viability it will be purely a political decision. Not one thing has changed in medicine or civil rights or the Constitution in recent decades that would suggest that either of those rulings be overturned. And no justice suggested there was one. Coming up with workarounds — like adoption — are just smokescreens to dismiss nearly 50 years of precedent for ideological reasons.” L.A. Times

This is a devastating look at Mayor Eric Garcetti’s professed obliviousness to his ex-aide’s alleged sexual harassment. Journalist Alissa Walker digs up the receipts of Garcetti’s behavior with regard to his former deputy chief of staff Rick Jacobs — from multiple people recalling Garcetti saying something to the effect of, “I can’t believe we’ve never been sued for anything that Rick’s done,” when he denied under oath making any such statement, to a former staffer’s testimony alleging that the mayor had himself witnessed some of Jacobs’ behavior — and compares them to his public statements on the matter. It isn’t a flattering picture of the presumptive future U.S. ambassador to India or his political inner circle. New York Magazine

Continuing on the theme of a rudderless L.A. City Hall, there’s yet another scandal at the Department of Water and Power — and, yes, this is under a mayor who was first elected on a promise to reform the DWP. This week, a lawyer hired by City Atty. Mike Feuer, who is himself running for mayor, to handle the utility’s overbilling debacle pleaded guilty to bribery amid a federal investigation of the DWP. Says the editorial board: “Feuer and Garcetti, as well as City Council members who have oversight responsibility, need to account for how this corruption was allowed to happen under their watch and what they’re doing to make sure it doesn’t happen again.” L.A. Times

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Everyone hates leaf blowers. Many cities have banned them. So why are they so hard to get rid of? Gas-powered leaf blowers will soon be banned in California, but if Los Angeles’ experience is any guide, another law against those infernal air-fouling machines probably won’t make them all go away. In the latest installment of our Hear Me Out video letters series, Times reader Greg Golden of Van Nuys explores the odd history of leaf blowers — at first, they were marketed as the environmentally friendly alternative to clearing off your driveway with a hose — and expresses his frustration over the persistent suburban din and dust clouds created by these devices. L.A. Times

Where does USC get the money to sign its new football coach to a contract believed to be worth $110 million? Its players, of course — not by stealing from their pockets but, rather, by effectively stealing from them by not paying them adequately for their labor. “Simply put, players create the wealth in college sports but are only compensated in the form of scholarships,” write Nathan Kalman-Lamb, Derek Silva and Johanna Mellis. “We are talking about one of the most egregious forms of systematic wage theft in American society today.” L.A. Times