The handwriting has been on the wall. We shouldn’t be surprised, but it’s still enraging. A draft SCOTUS opinion, written by Justice Samuel Alito and leaked to Politico, shows that the Supreme Court is poised to overturn the Roe v. Wade 1973 “egregiously wrong” decision and eliminate women’s right to choose an abortion.
Thank you, Maine Senator Susan Collins, who cast the deciding vote for Justice Bret Kavanaugh. To get confirmed, Kavanaugh asserted he would respect the precedential value of Roe and Casey. And he wasn’t the only one who lied to the Senate under oath. Amy Coney Barrett also swore she would respect stare decisis. Thanks, too, to Senate Majority Leader Mitch McConnell, the master of unprincipled power politics who wouldn’t even permit Obama’s nominee, Merrick Garland to receive Senate consideration.
The implications could be devastating, for the tens of millions of women (and their partners) for whom being forced to carry forward a pregnancy could jeopardize their lives, their health, their life plans and economic security, their reproductive freedom and right to control their own bodies. Shame on the Supreme Court if this draft holds as the majority vote. Shame on Clarence Thomas, Brett Kavanagh, Neil Gorsuch and Amy Coney Barrett, who are aligned with Alito.
Completely overturning Roe is surely not the view of a majority of all Americans. Recently polling indicates support of the law ranging from 54 percent to 66 percent. A recent NBC poll showed 86 percent of Democrats; 71 percent of Independents; with Republicans about evenly split. This squares with Fox News, Marquette, and other polls as well. Washington Post/ABC last week showed support to be roughly two-to-one in favor of preserving Roe. And, if the Court ultimately accepts jettisoning a Constitutional right to privacy on which Roe is based, what about contraception? What about gay marriage? What about inter-racial marriage? It’s more than just victims of rape and incest who could have their lives affected.
This decision, even to let the states decide, will most affect low-income women, those who can’t afford to travel to places where abortion is legal. They will resort to unsafe back-alley abortions or do it themselves, with hangers or other lethal methods.
Why did supporters of Roe permit themselves to be so out-organized for decades by those who made this their priority? Why didn’t supporters codify abortion rights nationally during the years in which they had the power to do so? If the Republicans win a veto-proof Congress, will they codify a national abortion prohibition?
This House has passed and sent to the Senate the Women’s Health Protection Act, to codify the law guaranteeing equal rights to women in their reproductive lives. Passage there would necessitate elimination of the filibuster, or at the very least creating a carve-out for the right to choose. Don’t hold your breath. Just get out and fight like hell for pro-choice candidates in the mid-term election. Remember, elections have consequences.
This may only be a draft opinion. It is not yet carved in stone. It could be a gambit to permit Chief Justice Roberts to “heroically” moderate the final decision while still banning abortion at 15 weeks. More likely it was leaked to lock in the majority. Regardless, the document is a confirmation our worst fears on this matter are about to be realized. As with the infamous Dred Scott decision, the Supreme Court, against the will of a popular majority, plans to turn fundamental rights over to the states. Twenty-one of them will ban all abortions as soon as permitted by SCOTUS. Four others are likely to follow.
It’s darkly ironic that a few days after the Court initially supported the draconian Texas anti-abortion law, Mexico’s high court paved the way for nationwide legalization. Since 2000, 31 countries have expanded abortion access. Only Poland, Nicaragua and the United States have gone in the other direction.
The threat to our bodies, ourselves, is no longer theoretical. It’s on our doorsteps and coming into our bedrooms. We mustn’t let it happen, if not for ourselves then for millions of others, including our children and grandchildren.