Nevo: Keep culture wars out of the Court

Lily Nevo, Assistant Opinion Editor

On Monday, the Supreme Court heard arguments against Senate Bill 8 — the Texas abortion law that bans abortions after a heartbeat is detected, with no exceptions for cases of rape or incest. As yet another abortion case reaches the Court, and pundits debate Roe v. Wade’s chances of survival, the real question should be whether the Court is the best place to settle the abortion issue.

Though the Texas law seems to be a clear violation of Roe v. Wade — the 1973 decision that granted the freedom to privately choose whether to terminate a pregnancy — the Supreme Court is not debating the constitutionality of the law, but rather an individual’s right to challenge it.

The law grants private citizens, not the state, the right to enforce it. Plaintiffs who sue anyone involved in aiding someone who has received or plans to receive an abortion are not only reimbursed the cost of their legal fees, but they are also given $10,000 if they win the lawsuit. In other words, Texas is paying its citizens to participate in legal vigilantism, giving culture warriors prosecutorial power.

The Supreme Court has long been involved in culture wars. It has and will continue to hear cases on LGBTQ+ rights, abortion, gun rights and free speech. Yet, with President Donald Trump’s three controversial appointments that pushed the Court to a 6-3 conservative majority, the politicization of the Court must be called into question.

In 2019, Supreme Court favorability was the most politically polarized for the first time in two decades. 75% of surveyed Republicans approved, compared to 49% of surveyed Democrats. This was before Amy Coney Barrett was confirmed and the Court swung even more heavily conservative. Furthermore, this split fell along religious lines: 72% of surveyed white, evangelical Protestants and 70% of surveyed Catholics viewed the Court as favorable, compared to 51% of those surveyed who were unaffiliated with a religious group.

The numbers for surveyed Republicans and white evangelicals reflect a significant shift from 2015. Following the legalization of gay marriage and the Court’s decision to uphold the Affordable Care Act, only 33% of Republicans and 30% of white evangelicals viewed the Court favorably.

In this way, the beliefs of the justices, and the extent to which they allow these beliefs to influence their decisions, impact the legitimacy of the Court in the public eye. The Court loses power when people do not respect it, and while the justices may not consider public opinion when making decisions, they always consider the Court’s reputation.

When the Court tackles culture wars, justices are automatically assumed to be political pawns. And when values are central to confirmation hearings, the Court appears to be the country’s moral compass. Yet in debates rooted in personal beliefs, no single institution or argument can sway public opinion. When both sides weaponize morality, there is no room for evidence, loopholes and technicalities because generalized facts or statistics never trump an individual’s experience.

The Court cannot settle culture wars, and if it continues to fight them, its approval will still be at the mercy of partisanship. Though the Court cannot simply cease to hear all socially controversial cases, it is worth acknowledging that when it does hear them, it is significantly less effective than many may think.

A Roe reversal would be undeniably devastating, particularly for those with financial limitations, but the existence of Roe does not end the creation of restrictive laws. Since laws that violate Roe must face a lawsuit in order to be struck down, each new anti-abortion law creates an environment for Roe to be overturned. If Roe were overturned, abortion would likely be illegal in 22 states. However, as it exists, Roe does not stop restrictions from being implemented; it only allows them to be challenged as unconstitutional. In other words, the net benefit brought by the existence of Roe is mitigated by the significant risk of harm that would be brought by its destruction. A court precedent does not hold enough legal power to truly prevent restrictions.

Fortunately, Roe will likely not be overturned with the Texas law. Due to the shaky legal ground of the law’s enforcement, it would not serve as a strong anti-abortion precedent. Still, if the Texas law is struck down, it will have made an immeasurable impact in the time that court delays and logistics allowed it to be in effect.

Rather than relying on the Court to settle the abortion debate, abortion rights activists should focus their efforts on the Women’s Health Protection Act of 2021. This act, which has already passed the U.S. House of Representatives, will protect abortion rights at the federal level for all people with the ability to become pregnant. By asserting the right to choose at the federal level, abortion restrictions will be untouchable by states. Furthermore, by releasing the Court from the burden of deciding morality cases, its credibility will be restored, and by democratizing morality issues, laws can better reflect individual opinion.

Lily Nevo is a Weinberg sophomore. She can be contacted at [email protected]. If you would like to respond publicly to this op-ed, send a Letter to the Editor to [email protected]. The views expressed in this piece do not necessarily reflect the views of all staff members of The Daily Northwestern.