Senate minority leader Mitch McConnell, trying to counter the outrage over the possible overruling of Roe v. Wade, dismissed the fact that, in so doing, the Supreme Court would be acting against the well-established views of the American people. In an NPR interview, he said, “So, for the Supreme Court on any issue to reach a decision counter to public opinion is exactly what the Supreme Court is about—is to protect basic rights even when majorities are in favor of something else. It happens all the time, so I don’t think that’s particularly unusual.”
There is some truth to what McConnell said. The job of the high court is to apply the law and the Constitution to cases before it, irrespective of public opinion. One could argue, however, that the court has more often ruled in favor of public sentiment despite the law. (Think Plessy v. Ferguson or Korematsu v. United States.) In support of his point, McConnell cited Texas v. Johnson, the 1989 case in which the Supreme Court ruled that flag-burning is protected free speech under the First Amendment.
McConnell picked a bad example. True, the public probably did not agree with the decision in Texas v. Johnson, but the public was wrong. The court correctly affirmed a constitutional right in Texas. If Roe is overruled by the justices, they will surely be disregarding public opinion. More importantly, they will be extinguishing a well-established constitutional right.
One may quibble about the reasoning in Roe v. Wade. The late Justice Ruth Bader Ginsburg agreed with the effect of the court’s opinion, but she argued that a more certain decision should have been based on an equal protection argument. In any case, overturning Roe will not put the abortion issue to rest; it will intensify it. If Americans do not enjoy a right of privacy articulated in Roe, this country cannot consider itself a free nation. Future rulings by this out-of-control extremist court may be expected to restrict even more human rights.