On Monday, Politico published a draft of a Supreme Court opinion that would overturn Roe v. Wade, the landmark 1973 ruling declaring that the Constitution guarantees Americans the right to end their pregnancies. The court later confirmed that the document, written in February, is genuine, but emphasized that it is not the court’s final word. We hope not. If the justices embrace the sweeping document, they will deal a grievous blow to freedom in the United States — and to the legitimacy of the court itself.
Such a leak from the court’s typically tight inner sanctum is itself astonishing. The court works on trust among justices and staff, so that the justices can deliberate frankly. Whether the document leaked from a conservative justice’s chambers, in an effort to lock in the support of others on the right for its far-reaching language, or from a liberal’s, in an effort to mobilize outside pressure against such a ruling, the leak represents a dire breakdown in norms and another dramatic sign of the court’s political drift.
But the draft ruling’s dreadful reasoning and extreme potential consequences are far more concerning than what the leak says about the court’s internal dynamics. Written by Justice Samuel A. Alito Jr., the document would declare Roe “egregiously wrong,” obliterate its guarantees of reproductive choice and empower lawmakers to abridge at will this long-held right.
The court’s legitimacy rests on the notion that it follows the law, not the personal or ideological preferences of the justices who happen to serve on it at any given time. Americans rely on the court to exercise care and restraint against making sharp turns that might suddenly declare their everyday choices and activities unprotected or illegal. Over the course of nearly half a century, the court not only issued Roe but upheld its bedrock principles against later challenges. Throughout, the original 1973 decision enjoyed broad and unwavering public support. What brought the court to its current precipice was not a fundamental shift in American values regarding abortion. It was the shameless legislative maneuvering of Senate GOP leader Mitch McConnell (Ky.), who jammed three Trump-nominated justices onto the court.
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In his draft, Justice Alito points out that the court has overturned many cases in the past, including the atrocious Plessy v. Ferguson, which permitted racial segregation. But the court has never revoked a fundamental constitutional right. Overturning Plessy expanded liberty. Overturning Roe would constrict liberty — and be a repugnant repudiation of the American tradition in which freedom extends to an ever-wider circle of people. By betraying this legacy and siding with the minority of Americans who want to see Roe overturned, the justices would appear to be not fair-minded jurists but reckless ideologues who are dangerously out of touch and hostile to a core American ethic.
Justice Alito complained in his draft that Roe failed to produce a “national settlement of the abortion issue” but only “enflamed debate and deepened division.” That exaggerates the extent to which the obstreperous minority of Americans who oppose Roe reflect the nation as a whole. A Post poll found just last week that Americans support upholding Roe by a 2-to-1 margin. For most people, Roe is a workable standard on a fraught issue; absent a clear understanding about when life begins, and with the moral implications surrounding that question far from settled, the Constitution’s guarantees of personal autonomy demand that pregnant people be able to make the difficult decision about whether to end their pregnancy according to the dictates of their own conscience.
It is Justice Alito’s proposed decision that would further divide the country, starting in nearly every statehouse. Yet the greatest casualties would not be the court as an institution or the nation’s already toxic politics. It would be pregnant individuals suddenly stripped of a right they had been guaranteed for almost half a century. Wealthy people would be able to cross state lines to end their pregnancies. (Although some states are already trying to outlaw that practice, as well.) Poor people would be forced either to carry unwanted pregnancies to term, with all the health consequences and risks that entails, or to seek illegal abortions that could endanger their lives.
Justice Alito’s draft claims that the court’s ruling would not imply that other constitutional rights, such as same-sex marriage or access to contraception, are in jeopardy. But given the brazen abandon with which he would discard abortion rights, his assurances ring hollow. He would inaugurate a terrifying new era in which Americans would lose faith in the court, distrust its members and suspect that what is the law today will not be tomorrow. They would justifiably fear that rights will be swept away because a heedless conservative fringe now controls the judiciary.
“The republic endures and this is the symbol of its faith,” Chief Justice Charles Evans Hughes said as the cornerstone was laid for the Supreme Court Building in 1932. The court’s conservative majority appears to be on the verge of abandoning justices’ sacred charge to stand firm for individual rights.
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