The leaked draft Supreme Court opinion written by Justice Samuel A. Alito Jr. posits not only the total evisceration of constitutional protection for abortion but of an entire line of substantive due-process cases. Alito’s draft includes a disclaimer that “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” but in ridiculing “appeals to a broader right to autonomy,” he implicitly casts doubt on precedent prohibiting prosecution of gay sexual relations and of same-sex marriage.
The leak itself, while not entirely unprecedented, is further evidence that the court has ceased to act like a court and now conducts itself like a partisan operation seeking to manipulate public opinion.
As would be entirely expected, pro-choice advocates reacted with fury over the news, with an unusually pointed statement from the White House on a pending case: “If the Court does overturn Roe, it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose. And it will fall on voters to elect pro-choice officials this November. At the federal level, we will need more pro-choice Senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law.”
House Speaker Nancy Pelosi (D-Calif.) and Senate Majority Leader Charles Schumer (D-N.Y.) also issued a blistering statement. “The Republican-appointed Justices’ reported votes to overturn Roe v. Wade would go down as an abomination, one of the worst and most damaging decisions in modern history,” they said in a written statement. “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.” (The “lie” they refer to is the promise from several right-wing justices that Roe was “settled law.”)
The decision is not final, but does suggest the Supreme Court is ready to launch a radical shift in constitutional law as we have known it for decades. Alito takes aim not only at Lawrence v. Texas prohibiting criminalization of sodomy but, if his reasoning is followed, to Griswold v. Connecticut, which in 1965 protected access to contraception. For the first time in history, the Supreme Court would sweep aside constitutional protection in many contexts for hundreds of millions of Americans, a jaw-dropping extension of government power to control the most intimate personal decisions and to impose a particular set of Christian views on the entire country.
At its core, this Supreme Court’s right-wing majority seems eager to cast aside the restraints of precedent, making good on their supporters’ agenda rooted in Christian nationalism. In assuming life begins at conception (thereby giving the states unfettered leeway to ban abortion ), Alito and his right-wing colleagues would impose a faith-based regimen shredding a half-century of legal and social change.
With polls showing as much as 70 percent of Americans favoring the preservation of Roe v. Wade, unelected justices — in some cases appointed by presidents who lacked a popular-vote majority and confirmed by senators who did not represent a majority of the country — would bring to head a battle between a fading racial, religious and political minority and an increasingly diverse, secular country.
By moving in such a radical fashion, these justices risk setting off a political firestorm and encouraging calls to rein in the court either by “packing” it or by dispensing with lifetime tenure. Justices’ recent overtly partisan speeches, disdain for precedent and now the egregious leak may well permanently damage respect for the court (already in steep decline) — as well they should. For when a court decides to adopt a partisan agenda of one party grounded in values the majority of the country does not hold, it risks revealing itself as a theocratic, agenda-driven body. Robes do not make a court; rather, it is intellectual integrity, humility and restraint — none of which the court’s conservative majority demonstrates.
If the opinion holds, the political tsunami will ensue. More than 20 states have laws that would ban all or nearly all abortions if Roe is overturned. In some cases, states would criminalize all abortions — even in cases of rape or when the mother’s life is in danger. Republicans would be forced to defend such egregious laws.
Democratic Senate candidates are already demanding the codification of Roe in federal law. “We have reached a crisis point, Republicans across the country are outlawing abortion in America and yet somehow too many Democrats have treated and continue to treat abortion rights as an afterthought or an extra credit project,” said Sarah Godlewski, a Democratic candidate for Senate in Wisconsin. “We have had almost 50 years to codify Roe into law. Enough is enough. Democrats need to get off the sidelines and stop ignoring Republican attacks on our reproductive rights. Women will die if we don’t.”
Likewise, Sen. Raphael Warnock (D-Ga.) released a statement vowing, “As a pro-choice pastor, I’ve always believed that a patient’s room is way too small for a woman, her doctor, and the United States government. I’ll always fight to protect a woman’s right to choose. And that will never change.”
Democrats, especially young voters, have been less engaged in the 2022 midterms than their GOP counterparts. That might now change as Democrats, especially women, understand the life-changing implications of how the court might rule. Alito wants the issue to go back to the states — and so it likely will, with devastating implications for women, who now might turn out to vote as if their lives, dignity and autonomy depended on it. For, of course, it would.