The United States Supreme Court has struck down a woman's right to choose whether to give birth, even though 85% of Americans support the right to an abortion under some or all circumstances.

The new Court decision takes away the right of millions of women to make the most basic  decisions about their own bodies and lives. And there is more to come. Conservative leaders around the country, and even members of the Court itself, have signaled that they are prepared to attack and eliminate other rights, including gay marriage and access to birth control. The Court is now undermining the separation of church and state, and upholding Louisiana election maps that lower courts have deemed racially discriminatory.    

To win in the 2022 midterms, and to begin to repair the damage and prevent more, the national Democratic Party must commit in its 2022 platform to make the right to an abortion the law,   and to reform the processes around— and if necessary, the structure of— the Supreme Court.

Why codify the right to an abortion into law?

Because it should be a woman’s choice whether she is going to have child. It should not be the choice of another woman, or a state legislator, or a member of Congress, or a Senator, or a judge. It should be the choice of the woman who is pregnant, and that choice must be protected by law. 

Why SCOTUS reform?

The Court majority that struck down Roe is nothing short of reactionary, seeking to turn back the clock on Americans’ rights. That majority exists because the way the Supreme Court is selected and functions is largely the product of unwritten rules and tradition. With no term limits, unelected Justices serve until they die or choose to retire. There are few if any real controls over who a President may nominate or when, what disqualifies a candidate, Justices’ conduct  or ethics, or when a judge must step down for health or other reasons.

In short, there are no meaningful guard rails for an institution that has the final word on interpreting American law and Americans’ rights. We should be able to have faith in how Justices are chosen, that there are standards for their behavior and a code of ethics with which they must comply.            

The lack of such standards and practices gives each political party maximum flexibility when it is their turn to appoint Justices—and has led us here. It has also brought on a crisis of legitimacy now facing the Court:

• After stating publicly and repeatedly that Roe was “settled law”, the three newest Justices— Gorsuch, Kavanaugh and Coney-Barrett—all voted to overturn it. That is not the action of principled legal “umpires,” but of people driven by political agendas.
• Justices Gorsuch, Kavanaugh and Coney-Barrett also testified at their confirmation hearings that they considered Roe settled law. Which means they lied, under oath. Shouldn’t that disqualify them from continuing to hold the job?   
• Neil Gorsuch was seated because a Republican Senate refused even to consider a Democratic president’s nominee, on the grounds that the next election was “only” 7 months away. The process should not be vulnerable to arbitrary political whim.
• Amy Coney-Barrett was seated after Senate Republicans decided that a Republican president could nominate a justice only weeks before an election, when voting had already begun in some states. The choice of Justices should not be subject to brazen manipulation.
• Brett Kavanaugh’s nomination raised so many questions about sexual assault allegations and his finances that it should never have gone ahead. But a “red flag” process just wasn’t there.

Because of a lack of standards and specified practice, a reactionary, politicized Court is now positioned to run roughshod over the rights and preferences of Americans for a generation, and to set our evolution towards an inclusive and open democracy back by multiple generations.

And it takes a majority of only five to do it. Should a panel of nine people really be determining the rights of hundreds of millions?   

Reliance on tradition, tacit agreements and the willingness of both political parties to "play fair" has now cost millions of American women the right to determine the course of their own lives. That must be corrected, and the ability of a reactionary, illegitimate Court to attack other rights must be headed off. The national Democratic Party should commit itself clearly to a platform for the 2022 midterms that includes making a woman's right to choose whether to bear a child the law, and fundamental reform of processes surrounding the Supreme Court— and, if necessary, the structure of the Court itself.

It would be the right thing for the Democratic Party to do. And without such commitments, the Democrats’ usual strategy— assuming that angry voters will automatically flock to them, even e.g. during  a period of inflation— may very well fail.