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Local analysis: Supreme Court abortion decision shows conservative bent of justices likely to have widespread legislative effects

Anti-abortion demonstrators celebrate Friday outside the Supreme Court in Washington, D.C. The high court’s decision overruling Roe v. Wade, eliminating the constitutional right to abortion after almost 50 years, was released earlier in the day.  (SHURAN HUANG/The New York Times)

The decision by the conservative bloc of the U.S. Supreme Court on Friday to strike down the constitutional right to an abortion will have ramifications well beyond the walls of the courtroom, local legal and political experts said.

By reversing decades of precedent, the court has effectively plotted an aggressively conservative course that, in addition to future legal decisions, could have consequences at the ballot box in November. It’s also likely to continue to contribute to erosion in the belief that the courts and its officers stand above political whims.

Shaakirrah Sanders, a professor at the University of Idaho’s College of Law, said after reviewing some of the ruling Friday that the response of the American public, and how that shapes the approach of the state Legislatures now tasked with developing abortion policy, will be telling.

“These are very serious times indeed, and with consequences I don’t think the U.S. Supreme Court has the capacity to deal with,” Sanders said. “That’s what the public does.”

Already Friday, politicians and candidates at the local and state level began positioning abortion access as a major campaign issue in November. Sen. Andy Billig, D-Spokane, the majority leader of the Washington Senate, said maintaining a Democratic majority in Olympia would be key to ensuring continued access.

“Republicans in this state, just like Republicans in other states, would absolutely strip Washingtonians of these rights and criminalize health care if they ever gained control of the Legislature,” Billig said in a statement.

Meanwhile, Sen. Mike Padden, R-Spokane Valley and chair of the chamber’s Law and Justice Committee, lauded the decision for giving voters the ability to push for laws that reflect their beliefs on abortion.

“We now can take another look at some of the proposals that have been introduced in the past, such as parental notification, the elimination of sex-selection abortions, the elimination of abortions based on (Down syndrome), and a ban on late-term abortions,” Padden said in a statement.

This type of campaigning and debate about abortion was seemingly anticipated by U.S. Supreme Court Justice Samuel Alito in his opinion for the majority of the court, which effectively overruled Roe v. Wade on a 5-4 vote, though Chief Justice John Roberts joined the majority in upholding a Mississippi law restricting abortion access but not in overturning the legal precedent.

“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” Alito wrote in his decision.

In doing so, the court’s majority has affirmed that its decisions and composition will likely be campaign issues for at least the next decade, said Cornell Clayton, director of the Thomas S. Foley Institute of Public Policy and Public Service at Washington State University.

“Democrats have been struggling to find some simple campaign theme for the midterms,” Clayton said, “and the court just handed them one.”

Republicans have appealed to voters for decades attacking the legitimacy of the federal courts, Clayton said. Friday’s opinion is likely to add to growing wariness among Democrats of the Supreme Court, making it a “legitimate target to be controlled,” he said.

Sanders said the notion that the court should be above politics, a refrain from Roberts throughout his nearly 17-year term leading the high court, was undermined by several developments dating to the early 2000s.

That included the Supreme Court’s decision in Bush v. Gore, which effectively decided the election in favor of Bush, who then appointed Roberts as chief justice, and the Senate’s refusal under then-Majority Leader Mitch McConnell to consider the nomination of Merrick Garland to the bench after the death of Justice Antonin Scalia.

“That is not to criticize John Roberts, or any member of the court,” Sanders said. “But it does demonstrate that politics had permeated the function of the court long before this session.”

While Roberts’ concurrence sought to limit the impact of the decision by arguing in favor of maintaining the Constitutional protection of abortion in Roe, another opinion from Justice Clarence Thomas prompted an outcry Friday that the decision might affect future rulings on issues decided on the same ground as Roe.

Thomas, in his lone concurrence, specifically cites rulings dealing with contraceptives, same-sex relationships and same-sex marriage in need of reconsideration, though he doesn’t state how the court should rule in those matters.

Sanders and Clayton said that opinion by Thomas mirrors rulings he’s made in other cases dealing with certain due process rights afforded by the Constitution.

“In the past, when Thomas has said stuff like that, no one has taken him seriously,” Clayton said. “Now he is right in the midst of the majority.”

Richard Seamon, a colleague of Sanders’ at the University of Idaho College of Law, also noted that the other justices explicitly stated that Friday’s ruling only dealt with abortion and not other rights afforded in similar ways.

“I don’t see the court backing off from that,” Seamon said. “I think Thomas is a lonely voice there.”

One potential avenue for lawmakers and voters concerned about Friday’s decision may be to amend state Constitutions to more permanently protect the right to abortion access, Seamon said, or for state Supreme Courts to recognize the right through interpretation of existing Constitutions.

“You might see a move afoot in some states,” Seamon said.

Sanders noted the significance of the Supreme Court’s two decisions this week as demonstrating the difficulties inherent in interpreting the country’s founding documents. While the court on Thursday struck down a New York state law restricting the ability to openly carry a handgun, on Friday it ruled that states are the appropriate venue to determine who can receive an abortion, and that no such federal protection existed.

“If you look at Constitutional jurisprudence, it is filled with nothing but tensions, hypocrisies and disparities with regard to the exercise of fundamental rights,” Sanders said.