It hasn’t been looking good for Roe v. Wade for a long time. So the shocking leak of a draft opinion by Justice Samuel Alito shouldn’t surprise us too much with its bottom line. The court looks likely to overturn 49 years of precedence in a 5-4 decision, a decision made possible in part by Republicans pulling out all the stops, most recently by Senator Mitch McConnell’s refusal to consider Merrick Garland’s nomination to the Supreme Court during President Obama’s term.
Who done it? We may never know. The easy answer is to blame some liberal-leaning law clerk. My guess is that it was just the opposite. While the outcome is not in much suspense, Alito’s draft opinion is just shocking for its rationale and mendacity.
His main thesis seems to be that abortion can be controlled by the states because laws against it are “deeply rooted” in tradition. Also deeply rooted are laws like only white male property owners can vote, slavery is okay and women shouldn’t be able to vote. Mind you this is the same justice that helped decide Citizens United v. Federal Election Commission, which decided that corporations are people. That’s not deeply rooted anywhere in American history; in fact it was nowhere in the law.
Alito, and apparently the conservative wing of the court, were looking for a pretext to overturn the 1973 ruling, and this was the rationale they came up with. It can be used as pretext for overturning all sorts of Supreme Court rulings, rulings on gay marriage, interracial marriages and separate but equal educations, for example.
I suspect that an opinion like this would get cleaned up in subsequent versions by other justices. This is unlikely to happen now because if the other conservative justices attempt to change the rationale, it will be clear to the radical right that they caved. The more radical the opinion, the better, is probably what the right is hoping for. They see the rationale for overturning Roe not just as a way to end abortions, but as a cudgel that will allow all sorts of other rulings to be overturned.
I was no fan of Citizens United. But at least it followed the general trend by the court of expanding civil liberties. If this ruling stands, you’d be hard pressed to find other rulings that actually curtailed rights. That’s what this ruling will do. It essentially means that pregnant women lose bodily autonomy. At least during pregnancy, they are not people: they are breeders for the state.
If the states were a bit looser in their abortion laws, overruling Roe might be easier to swallow. But states are going for the jugular. In many of these states, new laws make no exceptions for rape or incest. Not aborting an ectopic pregnancy can kill the mother. These laws will literally kill women trying to save fetal lives that cannot possibly be viable.
I’m reminded of a scene from the second season of Bridgerton, which you can find on Netflix. The young Lord Bridgerton’s mother is in labor, after his father dies suddenly. The baby is in a breach position. The attending doctor asks Lord Bridgerton whose life to save: the mother’s or the child’s. At least Lord Bridgerton gets a choice, although of course no one bothers to ask his mother. She has no choice in this: she is just chattel. If this ruling stands it’s pretty clear who wins in our brave new world in many states: the mother must die on the off chance a baby may live.
That’s what being “right to life” means to these crazy pro-life people. We will kill others including mothers, including mothers who were raped, if necessary to save a fetus. In many cases, it’s not a fetus, but an embryo. The expectant mother has no say in carrying a child to term. She’s like a mare being studded. She’s a baby factory; not a person and in the case of rape has no say in who can impregnate her either.
Roughly seventy percent of Americans believe that at least some abortion rights must be allowed. This radical decision is thus at wide variance with the consistent view of the American people. It is the tyranny of the minority in action that I have warned about.
It is likely though that when these new state laws actually go into effect and women actually start dying from unplanned pregnancies again, it will have a major boomerang effect in the midterms. It may be the gift that keeps Democrats in power in Congress, despite all the gerrymandering and voter suppression. Generally, the most passionate voters show up. If most of those who support abortion rights are passionate about it, they’ll show up in November and overwhelm the antichoice votes. In that sense the Supreme Court would have been smarter to delay this decision until shortly after the midterms.
Our Supreme Court is using overturning Roe to establish a new precedent to go after all sorts of laws and rights hitherto assumed sacrosanct. This makes the decision not just awful, but genuinely heinous.
If I were a Supreme Court justice voting for this, I would demand 24/7 security. By putting targets on the backs of pregnant women, they may be putting one on their backs too.