By Kenneth Tiven in Washington
A metaphorical bomb of a decision went off at the US Supreme Court last Monday night, fully six weeks ahead of its scheduled issuance. Justice Samuel Alito wrote the 98-page document, styling it as an “opinion of the Court” in Dobbs vs Jackson Women’s Health Organization. Lawyers constructed this Mississippi lower court case to appeal to the justices to eliminate the constitutional right to abortion first established by Roe and re-affirmed by Casey in 1992. This leaked draft of a majority decision would allow the 50 states to ban abortions. If the Court’s decision remains unchanged, it means Roe vs Wade, which enshrined a woman’s rights in medical decisions, is dead. The final form of the Court’s decision is due by the end of June, when the current Court session ends.
The justices, and those who manage the Court, are extremely upset that a draft has leaked. Chief Justice of the US Supreme Court John Roberts wants an investigation. Leaks have happened before, but the magnitude of this case is different. The level of partisanship and antipathy for the other side that has permeated two of three branches of American government—the Presidency and the Congress—has now escalated at the third, the Supreme Court. In a statement last Tuesday, the Supreme Court confirmed that the draft opinion is authentic, but said that “it does not represent a decision by the court or the final position of any member on the issues in the case.” Justice Alito called it wrongly decided and said the contentious issue, which has animated political debates in the United States for more than a generation, should be determined by politicians, not the courts.
“We hold that Roe and Casey must be overruled,” Justice Alito writes in the document, labelled the “Opinion of the Court,” according to website Politico. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” A George W Bush appointee who joined the Court in 2006, Alito argues that the 1973 abortion rights ruling was an ill-conceived and deeply flawed decision that invented a right mentioned nowhere in the Constitution and unwisely sought to wrench the contentious issue away from the political branches of government. Alito’s draft ruling would overturn a decision by the New Orleans-based 5th Circuit Court of Appeals that found the Mississippi law ran afoul of Supreme Court precedent by seeking to ban abortions before viability.
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The draft document has unsettled millions of people who have seen major gains in gender equality in America since that decision 49 years ago. Apparently, on medical grounds, the states would be able to set the standards, including ruling out abortion in cases involving incest or rape. Red states voters believe abortion is not a right. Blue states believe it is a right. California Governor Gavin Newsom is asking the Democratic-controlled legislature to enshrine this right for an abortion in his state’s Constitution. Anti-abortion activists in Texas were guardedly optimistic. The Court is 6-3 in control of conservative judges whose original intent philosophy regarding the US Constitution is an embrace, or perhaps a euphemism, for the 18th century when propertied men controlled everything.
The draft document by a majority opinion puts the abortion issue front and centre in American social and political life, just six months before a national election. Perhaps this clarifies the differences at stake in the election and how this might energize people on both sides to vote, recognizing that elections have consequences. House Speaker Nancy Pelosi and Senate Majority Leader Chuck Schumer, top Democrats, call it “one of the worst and most damaging decisions in modern history.” They noted that the three President Trump appointed justices lied to Senators during confirmation hearings. They considered Roe vs Wade settled law then, but now it is not. The draft suggests that American women and families lose a constitutional right they have held for 50 years, depending on what state they live in.
“The party of Lincoln and Eisenhower has now completely devolved into the party of Trump,” Pelosi and Schumer wrote. “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”. Politico, which broke the story, said the justices voting to support Justice Alito’s opinion were Clarence Thomas, Neil M Gorsuch, Brett M Kavanaugh, and Amy Coney Barrett.
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Obviously, Justices Stephen G Breyer, Sonia Sotomayor, and Elena Kagan are writing dissents. How Chief Justice John G Roberts planned to vote is unclear. The unprecedented revelation is bound to intensify the debate over what was already the most controversial case on the docket this term. Dahlia Lithwick , a longtime journalist covering the Supreme Court, said: “The gobsmacking leak itself confirms that norms and traditions that have steadied Supreme Court jurisprudence for decades and even centuries have been discarded,” adding that the Court’s public approval has plummeted to new lows in a compressed amount of time.
Taking the long view, as befits an American history professor, Heather Cox Richardson wrote: “That news is an alarm like the 1857 Dred Scott vs Sandford decision declaring both that Black Americans had no rights that a white man was bound to respect and that Congress had no power to prohibit human enslavement in the territories. The Dred Scott decision left the question of enslavement not to the national majority, which wanted to prohibit it from western lands, but to state and territorial legislatures that limited voting to white men.” The American Civil War broke three years later, with the industrialized northern states ultimately defeating the mainly agricultural Southern states that believed slaves were property, essential to their economic wealth.
Abortion regulation varies from nation to nation, India’s rules are relatively moderate compared to what this decision suggests states might do. Always a political issue, it has been pushed aside by immigration and gun ownership questions raised by the Trump administration. One tweet captured the contradictions this way: “Please note: abortions are being banned before assault rifles. It’s not about the sanctity of life It’s about control and power.”
Governor Kathy Hochul of New York said she was “horrified” by the draft.“I refuse to let my new granddaughter have to fight for the rights generations have fought for and won, rights that she should be guaranteed,” she said in a statement, telling women without legal access to abortion that the state would “welcome you with open arms.”
Republican governors, however, disagreed. Governor Kristi Noem of South Dakota wrote, that she would “immediately call for a special session to save lives and guarantee that every unborn child has a right to life.” Governor Kay Ivey of Alabama said her hope was that Roe vs Wade would be overturned. “Tonight, let us say a prayer for life and that our justices remain steadfast in their convictions,” she wrote on Twitter. “Here in Alabama, we will continue fighting for the unborn.”
In a wide swath of the country, it is already difficult for many women to access abortions. Several states have been enacting even more increasingly restrictive legislation over the past year, anticipating that the Court would overturn Roe. Last year a Texas law offered bounties of at least $10,000 to private citizens who successfully sue anyone—from a ride-hail driver to a doctor—who helps a woman get an abortion after about six weeks of pregnancy, rendering Roe meaningless.
The Supreme Court had repeatedly declined to block the law, thus encouraging Idaho and Oklahoma to follow with similar civilian-enforced laws. Fox News personality Laura Ingraham suggested the leak came from a left-wing activist court clerk: “They think that somehow this leak is going to be a gift that can rescue them from the mid-terms. The thinking is misguided.”
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Actress Nicole Brown had campaigned with Elizabeth Warren in the 2020 primaries and has a lot to say on politics: “If you are upset that #RoeVWade is about to be overturned by the Supreme Court but you didn’t vote in 2016 or you voted for Trump because you didn’t like the smart lady, YOU did this w/your apathy or your decision to choose an imp for President. YOU gave him THREE SCOTUS seats.”
Investigative reporter David Corn used a bit of sarcasm. “Just checking in with all those folks who thought it wasn’t that important to vote for Hillary Clinton. How are you doing tonight?” Congressman Eric Swalwell tweeted: “If you think they’ll stop with a women’s right to choose, you haven’t been paying attention. We have to fight like our lives depend on it because clearly, they do.”
Statistical analysis suggests that about 40% of American women have had an abortion. “Despite recent declines in abortion, it is still a standard procedure, and nearly one in four US women will have an abortion in her lifetime, says a reputable study.
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According to TRISTERO (at https://digbysblog.net), the leak waters down the impact of the official release of the decision. When it’s finally official, it will be old news. Also, the “premature release” of the decision throws into disarray any planning for protests and legal/ legislative opposition to the overturning of Roe. Those opposed thought they had until June to organize. Now, they’re scrambling. And for extra measure, the heads up that Roe will be killed (with extreme prejudice) is useful for all those pushing forced birth bills in Republican-led states. The blog goes on to say:
“Despite the ravings of the right on social media, I can’t think of any good reasons why this would have been leaked by someone interested in affirming Roe. Everyone knew it was coming and many could have guessed it would be written as belligerently as possible. It serves no purpose for those in opposition to the overturn and would surely lead to a firing. I think it was most likely leaked with the full knowledge of at least one of those in the majority. This stunt has all the hallmarks of far-right political activism.
—The writer has worked in senior positions at The Washington Post, NBC, ABC and CNN and also consults for several Indian channels