Roe v Wade has been overturned! No, not so fast! This document is only a draft opinion of Associate Justice Samuel Alito, probably written in February; the Court’s final ruling won’t come down until late June or early July. But already, Justice Alito has become the hero of the Right and the villain of the Left. Same for the leaker. Indeed, the leak itself has taken on a life of its own.
The leak has put a torch to three firestorms: Who leaked the draft opinion and why? What will happen to abortion rights? And how will the people react?
Who leaked the draft opinion, and why?
Senate Minority Leader Mitch McConnell wasted little time condemning the leak and blaming it on the “radical Left.” At the same time, ignoring the content of the leak, the imminent repeal of Roe. It is unclear just exactly what the leak may accomplish, or what the leaker intended it to accomplish. Perhaps to stir up one side or the other. Or who benefits most by the leak, and how? Within hours of the leak, the Supreme Court's steps became a scene of partisan rallies, on both sides of the Roe v Wade issue. The leak energized everybody.
What will happen to abortion rights?
First, the leak is just that, a leak, it is NOT a SCOTUS ruling. So, as of this moment and for several months, nothing has changed. Except everyone’s perceptions and everyone’s expectations. Some are glad, some are sad or angry. But in the end, Roe will probably be overturned. And abortion will no longer be a protected right at the federal level. Will the repeal of Roe stop abortions? Surely NOT! Except among the very poor. There is a chance, albeit a small one, that the leak may provide the time for a justice to change his vote.
How will the people react?
That is the question, isn’t it? Gallup has kept tab on our abortion pulse for decades. So has Pew Research. Apparently, repeal of Roe v Wade is now, and always has been, a solidly minority position. One can only imagine that this leak will harden the positions of nearly everyone who has a stake in the game. Pro-Life forces have made their annual March for Life on the anniversary of Roe v Wade, January 22nd every year for 49 years. Maybe both sides will show up on the National Mall next January, ready to do annual (verbal?) battle. Until the End of Times?
Here are some pungent quotes from Justice Alito’s draft opinion, with commentary.
- “Roe was egregiously wrong from the start.” "Egregiously wrong'? Is he calling the Roe justices stupid? In Roe, in 1973, seven justices, not just five, thought otherwise. And they knew to keep religion out of law; Alito and the conservatives on this Court are happy to bring their personal religious beliefs into their decision-making, the Constitution be damned!.
- “The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions.” A woman's right to vote is not deeply rooted in the Nation's history either. Or a citizen's right to marry who he chooses either. "Privacy" is not an enumerated right in the U.S. Constitution, because it meant something entirely different in colonial times. But is hard to imagine any rights at all without privacy being at the head of the list.
- If Alito and his fellow conservatives on the bench knew history better, they would understand that laws that forbade abortion in the past were not always concerned with the immortal soul of the unborn, they were often concerned with the biological father's property rights.
- “The decision (Roe) has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.” And Justice Alito imagines that THIS decision won’t enflame debate and deepen division even more!
- "We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.” The 9th Amendment to the U.S. Constitution reads: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." In other words, the fact that neither privacy nor abortion are mentioned within the Constitution has NO bearing on whether either may be constitutionally protected rights. Justice Alito needs to consult his pocket Constitution.
- “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” How about returning the issue of abortion to the women it will affect! How about pretending you're Republicans; government shouldn't meddle in peoples' lives.
The Right to Life
The modern criminalization of abortion in the USA rests entirely on one simple principle: that a soul is invested in an unborn at the moment of its conception. That the unborn soul has a right to life. That, therefore, abortion at any stage is the destruction of a soul, the "murder" of a human being. But this principle is not a fact, it is not grounded in science or in objective reality; it is rather an entirely religious notion. The "unborn" have no more natural rights than the quick and the dead. Even a careless reading of the works of the Founding Fathers recognizes a Wall of Separation between religion and government. Today's Pro-Life forces want to impose their religious beliefs on women everywhere. It has been suggested by many that criminalizing abortion is not primarily about sincerely held religious beliefs, but rather about power and control. Patriarchy is not dead in this land!
Justices lied
While repeal is likely, it is not certain. What is already certain is that this is not the end of the war on abortion. Most of the nation does NOT want repeal of Roe; but most Republicans do. The three Trump appointed justices swore during their confirmation hearings that Roe was established law, that it was precedent to be respected, stare decisis (“let the decision stand”). They lied. Pure and simple, they lied, under oath! And lying while under oath is NOT protected speech; it is perjury! But it is protected speech until a Court judges it perjury. Will they be charged? Of course not! Lying is a revered part of America's character, but until a lie is put on trial, it is protected by the First Amendment.
The Court's Reputation
Historically, the Court has been held in high esteem, by the public, much more than the Executive or the Legislative branch. For a simple reason: it is independent, assured by a lifetime appointment. But recent additions to the Court have become very partisan, and the Court's reputation has suffered greatly as a result. Check back with Gallup's polling of the trust and confidence in the Court in a few months, after Roe's repeal becomes real. The people want balance in the Court, not the hyper-partisanship of Trump's three justices.
The Republican Party
The mantra of the Republican Party is FREEDOM. And small government. And as few regulations as possible. Freedom for everyone, unless you are a woman, unless you are not straight, unless you are non-white, unless you are an immigrant, unless you are not their kind of Christian, unless, unless. So, what else is new? Abortion rights are front and center, again. And the rights of non-persons are central to what the Republican Party stands for.
The best decisions in the Court's history have always been about expanding rights and liberties, not snatching them away. The repeal of Roe may be the biggest snatch in SCOTUS's history. And it will surely result in a popular revolt.
If this feels like a giant step on the march toward authoritarianism, where the minority rule the majority, maybe you're onto something. Not a good sign for our democratic republic.
An Upside?
But, believe it or not, there may be an upside to this awful decision. First, the public response has been so swift and angry that there is a small chance that the Court may change its collective mind before it hands down its official decision. A small chance, as the Court's conservative majority seems not to care about public opinion. Second, rarely has a major political party been handed such a gift. Democrats have been crying in their beer about the shellacking they expect to suffer in the Midterms. The repeal of Roe changes everything! Not only will Democratic voters be energized to vote (as they did in 2020, when 81 million of them came out in force to prevent Trump from being re-elected), but independents and even some moderate Republicans will also be outraged by Roe's repeal. Because it is a right, a hard-won right, that American women are bound not to accept repeal no matter if God traced out "Thou Shalt have no Abortions" onto the original stone tablet.
A man wrote this piece. Imagine how different it would be if a woman authored it!
Here is a piece that I wrote nearly a decade ago that imagined how the women of Texas would respond to Roe's repeal. Multiply by ten or twenty.
Addendum: Thursday, 05/05/2022
There have been some 63 million abortions in the USA since Roe was made law in 1973. I wonder how many Pro-Life advocates have considered what these lives would have looked like? How many would have been raised by two loving biological parents? How many by a single mother? How many by adoptive parents? How many by adoption agencies? How many would live on the streets?
And how much national treasure, taxpayer revenue, would we have spent to support a population of 63 million additional Americans? For those of you who would like to see the math, the total social cost of taking care of 63,000,000 human beings for 18 years / person at $1,000 / month is $13.6 trillion. Total per taxpayer (assuming 100 million taxpayers) = $136.000, $2,775 / year, or $231.30 / month. Granted that this may be a worst case scenario, it is an interesting exercise to estimate the cost to society of an additional 63,000,000 Americans. Who imagined that repeal of Roe wouldn't have a cost?
Addendum: Saturday, 03/25/2023
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