When a ruling from the Supreme Court in a case engenders nearly five decades worth of political controversy, controversy that has even forever altered the nature of the nomination and confirmation process, it should probably not be surprising or even startling that a new array of justices on the Court would overrule that ruling. Such, it appears, is now going to be the fate of Roe v. Wade, the landmark 1973 ruling by the court that recognized a woman's constitutional right to abort a pregnancy. Then again, given the direct impact of the subsequent ruling on over half the population of this country, and the related impact on all of us, that fate cannot and must not be shrugged off. It must be dealt with and discussed, a process that has gotten well under way in the more than three weeks since we have all learned that Roe is going to be a dead letter in the Court's jurisprudence.
I'm not sure I can say anything on the subject that either adds or alters the debate, given the scale of the debate now ongoing, but the magnitude of losing Roe, for me at least, demands entering my proverbial 25 cents. That, and two other things. Two other "firsts."
The first of these is the leaking of what appears to be a final draft of a majority opinion in the Roe-killing case, Dobbs v. Jackson Women's Health Organization. Outcomes of Court cases have been leaked to the press in the past (Roe itself was leaked in this fashion), but never has an entire opinion of the Court been made available for public consumption prior to being made official. Republicans, proud of their handiwork in reshaping the Court's personnel, have made attempts to reshape this news to focus public attention on the leak, as opposed to what was being leaked. I'll have more to say about that in a paragraph or two. For now, the greatest significance of the fact of the leak is the way it illustrates how much the losing side in Roe has done to politicize that which should be the most neutral of umpires in the game of American life (h/t to Chief Justice Roberts for supplying the baseball metaphor during his confirmation hearings). And I say that regardless of the leak's source.
Second, there is the end result of the Dobbs opinion, if as now seems likely that it becomes official. As has been pointed out by Lawrence O'Donnell on his MSNBC program, "The Last Word," this will be the first time in the lifetimes of most of us that a right recognized as constitutional in nature has been taken away from the American people. No one should assume, based on what will apparently be the language of the Court's now-ultraconservative majority, that other rights so recognized by the Court are safe.
That is in no small part of the functioning of the language and reasoning of the opinion itself, by Justice Samuel Alito, to which I will now turn. Putting aside the sharpness of portions of the opinion's language, the law as it relates to abortion and otherwise are very badly mispresented by Alito in Dobbs.
The basis for the Roe decision was a constitutional right to privacy, emanating from other rights stated in various constitutional amendments. The late Justice Ruth Bader Ginsburg had observed that this was a somewhat constitutionally weak basis, suggesting instead that a stronger basis lay in the Equal Protection Clause of the Fourteenth Amendment to the Constitution. Rather than relying on that argument, the respondents in Dobbs focused on the reasoning in Planned Parenthood v Casey, an earlier effort by the Court to ground the right to abortion services in something stronger than a non-explicit right to privacy. Casey relied on the Fourteenth Amendment's Due Process Clause to recognize a right to have an abortion, holding that overruling Roe would be a blow against the substantive due process rights that women have come to rely on through the period in which Roe has been the law of the land.
Alito's rebuttal to all of these arguments is a lengthy, at times rhetorically florid, and in any case one-sided view of the law that ultimately rests on four bases: common-law commentaries, nineteen-century statutes, the absence of the word "abortion" from the text of the Constitution and its amendments, and, finally, the peculiar and extra-constitutional notion that, if an existing right can be regulated, it amounts to no right at all. Here is a brief summary of the problems with each base.
Common law, by definition, refers to that portion of initially British, and eventually American law as well, that evolved from judicial decisions that were meant to fill in the gaps in existing law or revise prior decisions based upon changed circumstances. Put simply, it is literally judge-made law--the very thing that conservatives supposedly despise as unconstitutional (despite its incorporation into American law by reference in the Constitution's Seventh Amendment). Common law, therefore, is by definition a moving target. One can pluck out of it various portions that might seem to absolutely prove one point, but, considering it as a whole, the truth proves to be more complex. So it is with the common law of homicide: specifically, the requirement that the victim be "born alive." That requirement would preclude a common-law treatment of abortion as an act of murder.
Next, the argument that unenumerated rights must be, in words cited by Alito from another case, "deeply rooted in this Nation's history and tradition." The case in question makes references to rights that can be supported by way of the Fourteenth Amendment. However, Alito makes little or no reference to two other amendments, neither of which contain the "deeply rooted" language. These are the Ninth and Tenth Amendments, which, taken together, explicitly acknowledged the existence of non-enumerated rights reserved to the States and people. And, though Alito took pains to obscure it, the fact remains that every colony in pre-independence America allowed abortion up to the point of quickening, thereby making it "deeply rooted in this Nation's history and tradition."
Alito also leans heavily on the nineteenth-century promulgation of state statutes criminalizing abortion practices. So enamored is he of these as a way of bolstering his argument that he has devoted one-third of the opinion to describing the language of these statutes in detail. That, all by itself, should be a tell that these laws are being used here to prove more than their language permits. In fact, that is the case; as the criminalization of abortions in the nineteenth century had nothing to do with the fetus and quite a bit to do with a reason as ancient as it is contemporary: sexism.
The opinion also leans rather heavily on the view that, because abortion practices have been regulated for centuries prior to the existence of the United States, they cannot truly be said to be rights. Carried to its logical conclusion, this would lead us to regard the rights stated in the First Amendment in absolute terms as non-existent, as the Supreme Court itself has made ruling after ruling regulating them in both substantive and procedural ways. Once again, the "proof" does not relate to the reality. On the other hand, and despite an explicit denial to the contrary, Alito reveals more than he perhaps intended in raising the question of whether "viability" is even necessary in regulating abortion, thus laying the groundwork for banning it altogether.
Finally, there is or has been the political process by which the new anti-abortion majority on the Court has been assembled. As shamefully as the process has been conducted in the Senate, specifically and deceitfully by Mitch McCONnell, the behavior of the majority apparently ready to vote the Dobbs draft into law has been even worse. Every one of them was asked for their views on the status of Roe as a precedent. Every one of them stated, unambiguously, that it was settled law. Which means that every one of them knowingly lied under oath. People willing to do this should not even hold a law license, let alone serve on the highest court in the land.
It's worth remembering that the country went through the divisive and prolonged process of the impeachment and trial of a President of the United States based on his alleged lying under oath in a civil trial. How quickly conservatives, on and off the Court, manage to forget certain things. I have no illusions about any of these now-Justices being impeached for perjury, given the constitutional threshold for conviction. But no one should lose sight of the irony and disgrace embedded in the fact that perjury is part of the price tag for destroying a constitutional right.
In this context, Alito's assertion that Roe should be overruled because it has failed to unify the country around its holding is especially galling. Does he really imagine that laying the groundwork for 50 different sets of abortion regulations is going to be more unifying? Especially when red states are racing against each other to see whose regulations can be the most anti-woman? His assertion has no more integrity than does his confirmation assertion that Roe is settled law.
Nor should we have any confidence in Alito's confidence that Dobbs should not and will not serve as the basis for overturning other non-enumerated rights previously recognized by the Court. The opinion, contrary to Alito's own words, could in fact serve as the basis for overturning other rights. Indeed, ultimately serve as the basis for turning our non-sectarian republic in a fundamentalist Christian state. Look no further than the footnote in Alito's opinion where he chillingly discusses the domestic supply of infants. It's a very tiny leap from that type of thinking to living in a world in which women are no more than incubators for childless fundamentalist couples.
As it turns out, and perhaps in part thanks to the leaked Alito opinion, we are already living in a world in which church leaders feel comfortable using their ecclesiastical power to intimidate elected officials, even when they expose their own hypocrisy in doing it. Take, for example, the recent announcement by the Archbishop of San Francisco that House Speaker Nancy Pelosi would no longer be allowed to take Communion, because of her pro-choice stance. Though his announcement was couched in a concern for her soul, it was nevertheless delivered with the level of publicity and the lack of subtlety one usually associates with the exercise of political power. The Archbishop did this not as a sheppard tending a member of his flock, but as a public official attempting to shape public policy.
Which is why Pelosi's public response was spot-on. Why, indeed, not deny Communion to politicians who favor capital punishment? Why not deny it to politicians who deny aid to the poor, or to immigrants, or victims of domestic violence? Why is there this relentless political obsession with a single issue, one that is not even mentioned in the Bible? What does turning a sacrament of the Church into a political cudgel do to advance the spiritual message of the church? Indeed, in light of its willingness to do this, what is the message of the church?
It's the raising of questions like this that makes it important to remember how conservatives reached this moment of triumph in its war against Roe. They did it by playing a long game, a willingness to move not in great leaps, but in tiny steps all aimed toward this moment, and taken without pause or pity for the short-term consequences. They are willing to dismantle democracy one right at a time, and have now demonstrated the ability to do it. There is no reason to doubt that, in very short order, they will begin to work on others. The fact is that, like all aspects of American conservative politics, the war on Roe began with a major setback for them in the war on race. This war is in fact decades older than the Roe decision. It's important for me to say at this point that victory for our side will probably take many decades more.
In the short term, what are the likely political effects of overturning Roe?
Republicans are attempting to pooh-pooh any political effects at all. They are banking on inflation concerns to carry them back into power. At least some Democrats, at this stage, seem to share that grim outlook. But not all. Some are banking on the idea that abortion as a political issue is of such paramount importance to women that it may outweigh the cost of living as a decisive factor in how they vote. Even Alito's opinion seems to concede as much. In turning the issue of abortion over to the states, he notes, women are not without power; indeed, they tend to vote in greater numbers than men. For that matter, since the opinion lays the groundwork for overturning other rights, might not the blockback from Democratic voters be even greater for that reason alone?
And if Dobbs is not a political problem for Republicans, why haven't Republicans been openly celebrating the draft opinion? Why, in the absence of evidence, are they blaming liberals for the leak in the first place? It's because they know that the politics of abortion in a post-Roe world aren't good for them. In fact, polling already suggests that this is a political problem for them: Even one conservative columnist has pointed out that the effect of this ruling damages both conservatism and America.
And there's evidence that the leak may have come from conservatives instead, once again illustrating the politicization of the Court by the right, not the left. Why conservatives? The speculation seems to be that one of the five conservative votes for Alito's draft opinion may not be completely solid, and the leak is an attempt to back the Justice in question into a corner from which there is only one escape: voting with the other four. Even with a solidly conservative majority, the Court is still, as it has in the past, looking over its institutional shoulder at the court of public opinion.
As far as public opinion is concerned, it is most definitely not on their side. Even though Alito's draft is still a draft, protesters have been organizing and conducting peaceful demonstrations outside of the Justices' houses. At least one conservative commentator has objected to this, but these protests may show more political savvy than the violent conservative attacks on abortion clinics carried out over decades. This might be especially true in the case of the protests outside of Alito's house, which happens to be located in a neighborhood built for the privacy of the few at the expense of the many. What better way to illustrate, or at least call attention to, the link between Republicans as the party of the privileged, able to afford rights they systemically deny to everyone else?
Another political problem for Republicans here may be simply the rank hypocrisy of Republicans denouncing the leak, when it is entirely possible that the leak may have a conservative source, aimed at shoring up a weak vote on the Court, or even motivating Republican voters. It's not as if Republicans have been steadfast at sticking to tradition when it comes to the Supreme Court, and particularly to the process for approving nominees. Particularly galling is the rank hypocrisy of Justice Clarence Thomas and his insurrectionist wife, Ginni. How dare he lecture the American people on accepting outcomes they don't like? It's not as if he holds his wife that that "lofty" standard. [Side note: don't expect anything to come from Chief Justice Roberts proposed investigation into and proposed punishment of the source of the leak; don't forget that we are talking about a Court with no enforceable standards for regulating its own conduct.]
But we don't have time to contemplate the state of the souls of the Court's majority, or Republicans or conservatives in general. We have a nation to save from the damaging consequences of the Alito draft as an actual decision of the Court, once that has the force of law. You have only to look at the history of Romania under Communism, with its overcrowded orphanages and back-alley abortions, to see what might lie ahead of us in a world governed by Dobbs. Or look right now at states where a maximum effort has been made to suppress abortion access, where child poverty rates are intolerable. Or at statistics which show that being denied access to abortion services sends women plummeting into poverty. Or consider what Dobbs will do to men's attitudes more generally toward women, to treat them as an accessory and not as a human being.
And despite a lot of naked propaganda to the contrary, don't expect Christian charity to fill the compassion void. The only such charity that will be available will be the "thoughts and prayers" variety.
Nor should any find solace in the thought that blue states will ensure that some level of abortion access will remain in the country. Some states are, in fact, already preparing to handle an increase in requests for abortion services. But these states will be in the minority and, in many cases, far away from the women who need abortions. And too, many of these women will be without the means to travel to those states. Their home states may go out of their way to prevent them from travelling; this could become more than just a commercial before very long.
And, in the end, it may not matter. Some are calling for a national law banning abortion.
At the same time, there may be some unintended adverse consequences as well for red states, ones that may make the polarization of the country's politics even worse. Consider this, for example. If I were a college-age woman, I would only be looking at schools in states where my ability to get an abortion if I needed to do so was not in question. For that matter, if I were a young woman out of college and ready to start a career, I would only be looking for opportunities in those states. In fact, I'm not sure I would even want to travel to a red state, and take a chance on an unplanned pregnancy with no alternative for ending it. I think it's more likely than not that the "brain drain" from red to blue states that has been going on for the past several decades is about to get much, much worse. Good for red states, a yawning disaster for red ones (though its politicians would never be caught dead admitting it), and, overall, an increased fracturing of what's left of our national politics. Hard to imagine? Just watch.
Whither abortion and America after Dobbs?
For those of us who truly care about women AND children, staying at home and hoping our absence at the polls will somehow outweigh our presence on social media is not an answer. Now, as never before, everything that progressives have fought for is at stake. Including democracy itself.
In this election year, there is a greater need than ever for the late John Lewis' "good trouble." It's the only antidote to the Samuel Alitos of the world, and a Court that is Supreme but not just.
