The stunning leak to Politico of a Supreme Court draft opinion in Dobbs v. Jackson Women’s Health announcing the probable demise of Roe v. Wade means that a half-century of constitutional support for reproductive freedom is likely over in America.
Justices Thomas, Gorsuch, Kavanaugh and Barrett signed onto Justice Samuel Alito’s draft majority opinion. Alito’s language is clear-cut: “We hold that Roe and Casey must be overruled,” and “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” Unchanged, that would mean that a majority of the Supreme Court will vote to overturn Roe before its term ends in two months. This would mark the first time in U.S. history that a constitutional right is taken away.
So much for “respect for precedent, settled law and stare decisis” these justices proclaimed during their confirmation hearings. These pronouncements strongly implied that they would not vote to overturn Roe v. Wade.
It should also be noted that Alito is ignorant of the history of abortion in the U.S. in his draft opinion, which overlooks the fact that abortion was legal going back to colonial times. States did not begin making it illegal until around the Civil War.
Once Roe is overturned, around half of the states are poised to ban abortions. In most of them, laws currently in effect and “trigger” laws that would automatically kick in once Roe is overruled don’t even make exceptions for rape or incest.
The ruling will have no effect on women with the means to travel to pro-choice states to have an abortion. The adverse impact will be on millions of poor women who for whatever reason cannot or do not want to carry a pregnancy to term. They will be forced into back alleys for risky illegal abortions, or to have babies they can't support.
Moreover, once these babies are born, Republicans’ pro-life advocacy will end. Their track record portends that they will continue to vote against affordable daycare, universal pre-school, child tax credits and any other legislation that would support hard-pressed women and families. Therein lies the shameful hypocrisy of the Republicans’ pro-life mantra.
It makes no difference to the Court majority that Americans in poll after poll overwhelmingly support a woman’s right to choose by a two to one margin.
The emergence of a Supreme Court that is a rubber stamp for far right aspirations is not only due to Republican schemes that then-Senate Majority Leader Mitch McConnell pulled off to deny both Barack Obama and Joe Biden their rightful Supreme Court picks. When Obama nominated Merrick Garland with eight months to go before the 2016 presidential election, McConnell said that an open seat on the Court should not be filled during the last year of a presidential term, which resulted in holding the seat open for Donald Trump to fill. Then, when Justice Ruth Bader Ginsburg died seven weeks before the 2020 election, McConnell reversed himself and rushed through the confirmation of Trump nominee Amy Coney Barrett. A Mitch in Time Steals Nine.
The Democrats are also to blame. For more than a generation, they failed to recognize the significance of Supreme Court selections. While Republicans focused their attention and resources on transforming the federal courts into ideological endorsers of ultra-conservativism, Democrats obsessed over much less consequential matters. They allowed Republicans to have their way with judicial nominations with nary a peep in protest. The upshot is a federal court system likely to be dominated by young right-wingers for decades.
The Court’s conservative majority may not stop with overturning Roe. Watch out for assaults on other constitutional right-to-privacy-based decisions such as gay marriage and contraception.
Fantasizing about Imposing term limits on Supreme Court justices, or “packing” the Court with additional justices are pipe dreams not worth the time or effort. These “reforms” will get nowhere.
The only solution is for Democrats to win elections so that they can control judicial appointments. Trying to arouse their base with outrage over the demise of Roe will not be enough. Neither will it be enough to point out that two of the Justices (Gorsuch and Barrett) voting to sink Roe are on the Court only because of political chicanery. Dems also need a steady drumbeat of warnings of this partisan Supreme Court’s likely systematic destruction of other rights and policies they value.
If this continues, America will be unrecognizable and much the worse for it.
May 7, 2022