A shocking leak of a draft opinion by Supreme Court Justice Samuel Alito Monday night shows that, as widely expected, the court will overturn Roe v. Wade. Speculation flew about who leaked the draft and what their political intent in doing so, with many longtime court observers expressing horror at the breach of court secrecy. But the most important thing here is the loss of a right long guaranteed by the court, a loss of bodily autonomy not just for pregnant people but for anyone who might at any point become pregnant – a loss of a right that will lead to the loss of life. History shows us that women get abortions whether they’re legal or not. The question is how many will die.
The looming loss of reproductive rights is widespread, with 13 states having trigger laws that will ban abortion the moment the court allows it. But as of now, Roe v. Wade remains the law (except in Texas, which the Supreme Court allowed to implement a six-week abortion ban last fall), and it will do so until a final, non-draft, not-leaked, opinion is officially released.
Reproductive rights are not the only ones in danger from this court, packed by Donald Trump and Senate Minority Leader Mitch McConnell with three justices during Trump’s term. Alito’s draft opinion also takes aim at LGBT rights, criticizing Lawrence v. Texas, the case that legalized sodomy, and Obergefell v. Hodges, the landmark marriage equality decision. Republicans have also been increasingly open about their desire to overturn Griswold v. Connecticut, the case that legalized contraception for married couples. “The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions,” Alito wrote—and it doesn’t take a lot of imagination to come up with other rights he doesn’t think are deeply rooted enough to deserve protection.
But reproductive rights are the ones that will be struck down in the coming weeks, if this draft opinion holds. And when that happens, it will be already vulnerable people who suffer: ones without the money to get on an airplane and fly to a state where their rights will be protected—at least until Republicans take Congress and pass a national abortion ban, as they hope to do.
“Several of these conservative Justices, who are in no way accountable to the American people, have lied to the U.S. Senate, ripped up the Constitution and defiled both precedent and the Supreme Court’s reputation – all at the expense of tens of millions of women who could soon be stripped of their bodily autonomy and the constitutional rights they’ve relied on for half a century,” Speaker of the House Nancy Pelosi and Senate Majority Leader Chuck Schumer said in a joint statement Monday night. “The party of Lincoln and Eisenhower has now completely devolved into the party of Trump. Every Republican Senator who supported Senator McConnell and voted for Trump Justices pretending that this day would never come will now have to explain themselves to the American people.”
What Pelosi and Schumer didn’t say is what they plan to do about it. Or even what they plan to say Democrats would do about it if they had a few more Senate seats.
Just as the imminent overthrow of 50 years of abortion rights challenges congressional Democrats to take action, not just talk, it highlights what the Supreme Court has become even as seasoned, serious political observers have insisted it remains a nonpartisan institution. If and when the draft opinion becomes an official one, “years of conventional wisdom about the Court and its concerns for its own legitimacy will be proven wrong,” Dahlia Lithwick writes at Slate. “Every single court watcher who spoke in terms of baby steps, incrementalism, or ‘chipping away’ at one of the most vitally important precedents in modern history will have been wrong. Those who suggested that the Court would never do something so huge and so polarizing just before the November midterms will have been wrong. And the people who assured us that Brett Kavanaugh and Amy Coney Barrett were moderate centrists who cared deeply about the appearance of a non-ideological and thoughtful court, well yeah. They will have been wrong too.”
There’s a reckoning due for all the pundits and political figures who cautioned against exaggerating the dangers of a Republican-controlled court. Unfortunately, those people never accept accountability for their lousy judgment and misleading pronouncements. Now, it’s likely that poor women, and especially women of color, living in Republican-controlled states, will pay for it with their health or their lives.
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