We can only hope someone on the Supreme Court gets cold feet. nnOtherwise, the draft Supreme Court opinion leaked in early May overturning Roe v. Wade is likely to stand and much of our constitutional framework will be dismantled.
The draft, obtained and published by Politico, was written by Justice Samuel Alito and would uphold Mississippi’s ban on abortion procedures after 15 weeks of pregnancy. The court heard arguments on the case, Dobbs v. Jackson Women’s Health Organization, in December and is expected to officially rule in June.
In the leaked draft, Alito describes the key decisions — Roe v. Wade, which legalized abortion in 1973, and Casey v. Planned Parenthood, which upheld abortion in1992 but established viability criteria — as an “abuse of judicial authority” that creates a new right different in kind than other rights created under the 14th Amendment. These new rights, which include those protecting “intimate sexual relations, contraception, and marriage,” because the right to an abortion “destroys” what Roe and Casey “called ‘fetal life’ and what the (Mississippi) law now before us describes as an ‘un-born human being.’”
“The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the 14th Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’”
Essentially, Alito says, the only rights the court is bound to uphold are those with a long tradition.
The draft, according to Politico, was written in February and it is unclear if it has been revised since. Four justices have signed on to the opinion, along with Alito, according to Politico: Clarence Thomas and the three Trump appointees, Amy Coney Barrett, Brett Kavanaugh and Neil Gorsuch. It is unclear how the sixth Republican appointee, Chief Justice Roberts, will vote, but he is considered a conservative on the issue, and has occasionally sided with liberals on controversial cases to “protect” the court’s reputation.
Women would be the big losers if this, in fact, is how the court rules. Abortion as an issue has never been about medical care; it is and remains an issue of women’s sovereignty and ownership of her own body. This makes compromise difficult, and it is why the issue needs to be at the center of progressive politics.
It is not just a question for women, though they obviously are the ones most directly affected by the potential decision. While Alito said his opinion did not reflect on other rights, it is clear that his reasoning implicates them and opens them up to conservative scrutiny.
Rutgers Law Professors Kimberly Mutcherson and David Noll called the draft a far more sweeping document than Alito implies. His language, they say, points to a broader interpretation, one that “has serious implications for a number of rights that many of us hold dear.”
“For example,” they say, “the right to marry is not explicit in the Constitution. The right for parents to make decisions on behalf of their children is not explicit in the Constitution. The right to access contraception is not explicit in the Constitution.” Given the current battles over public school curricula, “the draft opinion’s sweeping logic can easily be deployed to attack all of these rights. The path that’s charted in this opinion leads to a serious constriction of rights for all sorts of people, not just those seeking abortions.”
None of this should be a shock, though it might feel like this came out of the blue. This has been the Republican mission for decades, something the Right has not been shy about. They have been remaking the court in their image since at least Ronald Reagan, using a no-holds-barred approach that included the outright theft of a seat created by 11 months of purposeful refusal to even hold hearings on President Barack Obama’s proposed replacement for Antonin Scalia.
Given this, one might assume Democrats — and progressives more generally — would have made protecting the court a priority before 2020. They didn’t. The stymied appointment of Merrick Garland to replace the late-Scalia was barely a ripple in the 2016 campaign, and then Senate Republican Leader Mitch McConnell forced Gorsuch through during the early months of the Trump presidency. Garland would have shifted the court balance to the Democrats but, instead, the GOP got to replace its own and then added to its hard-right majority, making it impossible for incoming President Joe Biden to do much about it.
Biden hedged during his campaign, and has hedged since, avoiding using the court’s unrepresentative make up as a political issue even as the court itself has made clear it now sees itself as not just a co-equal branch of government but as an equally political one. The difference is that we get to elect the president and members of the House and Senate, but we have little say over who gets lifetime appointments to a court that lacks accountability to anyone but itself.
Democrats’ inability to see match Republicans’ intensity on the court issue has left us waiting for the next shoe to drop. Despite Alito’s claims to the contrary, this court is on a mission to unravel the gains we have made.
Hank Kalet is a poet and journalist in New Jersey. Email, hankkalet@gmail.com; Twitter, @newspoet41; Instagram, @kaletwrites; See columns at hankkalet.substack.com.
From The Progressive Populist, June 1, 2022
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