A Leaked Opinion Reveals Roe v. Wade Is About to Be Overruled. Here’s What You Need To Know
The shock of the leaked majority opinion by Justice Samuel Alito overruling fifty years of precedent in Roe v. Wade and Casey is reverberating across the country. I have many thoughts on this, but to help understand where we are right now and what this means for the very near future, I’ve put together some key points of discussion. Let’s walk through some.
The Ruling Is Not Yet Final, But It Likely Will Be Soon
The draft opinion is not yet law, meaning the justices can theoretically still change their minds on it. Opinions can be and often are amended, rewritten, or even become dissenting opinions as the time for their final disposition draws near. There is therefore time for public pressure to mount against the impending decision, which could turn the already politicized court into something of a flashpoint.
With respect to the draft opinion getting out, leaks are rare in the history of the Supreme Court, but they are not unheard of. The New York Tribunepublished a running account of the infamous Dred Scott opinion which upheld the rights of states to impose slavery and contributed to a split America and the Civil War. For Court watchers today, however, the leak is still a seismic event that will undermine the Court’s normal functioning. But given the enormity of the impact of the ruling, it is also not surprising that someone leaked it.
I have few illusions, however, that the ruling will change much from its current draft. Five justices have apparently signed onto the opinion: Alito, Thomas, Gorsuch, Kavanaugh and Barrett. There are currently three dissenters, Sotomayor, Kagan and Breyer. Chief Justice Roberts apparently has not yet indicated where he stands, but with an existing majority of five, his vote won’t change the outcome.
The Ruling Will Create Two Americas: One Where Abortion Is Legal and Protected, and Another Where Forced Birth Is the Law
The draft ruling’s biggest effect will be to throw the question of abortion squarely back to the states, where it lay prior to Roe guaranteeing a constitutional right to reproductive choice. Abortion would most likely become illegal in roughly half the states due to “trigger” laws already passed in those states, meaning laws that go into effect the moment Roe is overturned. This accounts for somewhere between 24-26 of the states, depending on which measure you use. I find this graphic from the Guttmacher Institute accurate and helpful to understand the gravity of the shift:
On the other hand, states that currently support the right to choose will likely pass even more protections for reproductive rights. This could create some opportunities for those who become pregnant to receive reproductive services outside their states, but it will not alleviate the hardship for the underprivileged who do not have the resources to travel. Some states likely will try to penalize any who attempt to undergo abortion procedures outside of their home states, underscoring how the current cultural divide could become a stark geographic one.
Recently Appointed Justices Lied to Senators About their Views on “Settled Law” and “Personal Views”
When Justice Brett Kavanaugh was being confirmed to the Court, he told Sen. Susan Collins (R-ME) that he viewed Roe as “settled law” and called the cases affirming it “precedent on precedent.” To Sen. Dianne Feinstein (D-CA), Kavanaugh underscored “the importance of the precedent” under the previous court rulings and affirmed that a “woman has a constitutional right to obtain an abortion before viability”—meaning, normally around 24 weeks into a pregnancy. Justice Amy Coney Barrett reassured senators that laws could not be overruled simply because of personal beliefs. “It’s not the law of Amy,” she assured them.
Those statements are now belied by their votes on the Mississippi case that is set to overturn Roe. While there is almost zero chance that an evenly split Congress would ever vote to impeach any justices over this, there is now at least a strong moral argument for expanding the number of justices on the Court, especially if the expansion could help depoliticize the body. Two of the justices are there after giving false statements. One is there after Mitch McConnell improperly refused to hold confirmation hearings for Merrick Garland. There is a strong argument that the Court itself is now so delegitimized that a reset is in order before it is too late.
The Options to Codify Roe v. Wade by Legislation Are Limited
In order to pass a federal law guaranteeing the right to choose, Democrats would need to either garner 60 votes in the Senate (not likely) or amend the filibuster rules to permit passage of the law with only 50 votes (the so-called “nuclear option”). But without the support of Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) for filibuster elimination or reform, that is not likely either. In any event, Manchin is an opponent of abortion rights and has voted with Republicans to draw “red lines” in the sand over things like the Hyde Amendment, which blocks Medicaid and other federal health programs from being used to cover abortions.
In Democratic-controlled states, however, much can be done to shore up reproductive rights, including offering safe havens and even possibly travel costs for women seeking abortions out of state. Some large corporations such as Citigroup have offered travel reimbursements to employees from Texas who seek reproductive services out of state (something that earned it ire and warnings from state lawmakers). And the White House can play a part as well by expanding access to abortion medicines like mifepristone, which can now be prescribed via telemedicine and mailed to patients. States that are anti-abortion, however, likely will fight such access through tougher laws.
Forced Birth Is Likely To Become a Defining Issue in the upcoming Election Cycles
The battle against the far-right likely will be supercharged by this opinion. It has been fifty years since the original Roe decision came down, transforming the lives of American women for the better, especially poor women by giving them basic agency over their bodies. Now that right is likely going away, setting us back those 50 years and creating a new harsh reality behind red state lines.
Together with Republican attacks on other key Democratic constituencies, e.g. Black voters and the LGBTQ+ community, the full-out assault on reproductive rights gives the Democratic base a compelling reason to turn out in force this November. Failure to do so will result in these changes in the laws becoming further entrenched and immovable, with predictable, dire consequences for entire generations to come. Democrats will need to mobilize as never before, despite economic uncertainty, despite lack of forward progress on key campaign promises due to united GOP opposition and two Democratic senators unwilling to recognize the danger that radical Republican extremism poses.
Today’s GOP only understands power. To defeat their regressive agenda, Democrats and fair-minded Independents must show their own power. Those who wish to preserve a woman’s right to choose will need to assert numerical superiority at the polls in a new and crushing blue wave. There is no other option now that the GOP has so openly declared its national war on women.
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