I was an appellate judge for 15 years and was both honored and humbled to serve. I have enormous respect for our judicial systems, both state and federal. They are not perfect but second place is a great distance behind. While politics has on occasion seemingly creeped into judicial decisions, that is the rare occurrence. Oaths matter, judges understand them and public confidence is key if judicial opinions, especially unpopular ones, are to be accepted and followed. Once courts lose public trust, it is almost impossible to regain it.
During my time on the New Hampshire Supreme Court, I learned early the value of precedent and the justifiable reliance society places on it in ordering its daily affairs and expectations. It was always to be treated with special respect by those in judicial positions and altered or reversed only in exceptional circumstances. Judges are not philosopher kings and predictability in judicial decision making is essential. Radical change, especially radical change eliminating long-recognized constitutional rights for a majority of our population, seems almost impossible to envision and even harder to witness.
Last Friday, the U.S. Supreme Court did the unimaginable. It took away constitutional rights for women and girls relating to abortion and health care that a majority of the court thought were “egregiously granted” two generations earlier. Can you imagine if 50 years after the Brown v. Board of Education decision in 1954, a new iteration of the U.S. Supreme Court (by a slim majority) declared that the Brown decision was “weakly reasoned” and that “separate but equal” actually was constitutional and that segregated public schools should be permitted? The United States might have faced a second Civil War.
Chief Justice John Roberts’ ostensibly understood what his conservative colleagues didn’t. He said he would not have wholesale-eliminated the constitutional right to an abortion but would have shortened the time frame in which it was lawful. His view is an incursion of a protected constitutional right to be sure, but offers a more graduated approach to affecting a long-recognized and important right without throwing health care choices for women and girls to the whims of politics. A woman’s right to choose won’t likely be respected in that arena. The many state laws that have now snapped into place make that abundantly clear. Because a cherished right was taken from women and girls last week by our Supreme Court, it is now illegal in several states for a woman to have an abortion even if her pregnancy was a product of rape or incest. Unimaginable.
We live in a secular society with an extraordinarily diverse population of varied faiths and no faith. We prize religious freedom and our right to worship or not worship as we see fit. We take pride in our promise to separate church and state. It’s part of America’s fingerprint. Until last week, we trusted women and girls to make the often difficult, personal and painful decision about terminating a pregnancy, including life-saving health decisions, and gave them the constitutional space to do it. The issue is not whether any of us would make that choice, but whether we can snap a constitutionally protected right away after 50 years from those who would. Women are the losers as are the families and spouses who love them. Our Supreme Court has callously placed women at risk and did so in a manner that jeopardizes its public trust. Because of that, all of us lose, too.
John T. Broderick Jr, is a retired chief justice of the New Hampshire Supreme Court.
This article originally appeared on Portsmouth Herald: Broderick: Roe v. Wade decision jeopardizes women and public trust