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Alito’s Draft an Attack on Rights Beyond Abortion

Beyond its terrible implications for abortion rights, the leaked Supreme Court opinion would upend a long settled system of values.

May 3, 2022
The Supreme Court building
Robert Dodge

You’re read­ing The Brief­ing, Michael Wald­­­­­man’s weekly news­­­­­­­­­let­ter. Click here to receive it every week in your inbox.

Last night a draft major­ity opin­ion in Dobbs v. Jack­son Women’s Health Organ­iz­a­tion was leaked. If Justice Samuel Alito’s opin­ion is adop­ted, it will over­turn Roe v. Wade and Planned Parent­hood v. Casey. It is radical in its implic­a­tions.

The draft major­ity opin­ion expli­citly repeals a major consti­tu­tional right — one protec­ted for a half century — on the grounds that “Roe was egre­giously wrong from the start.” At the front of our minds must be the impact on the lives of millions of women. Beyond that, what would this mean for our polit­ical and judi­cial systems?  

Stip­u­late that it is just a draft, as Chief Justice John Roberts said today. Votes can change. Assume, though, that it’s close to what the Court will release by the end of the term. 

This ruling would usher in a dark and danger­ous new consti­tu­tional order. For as long as nearly all Amer­ic­ans have been alive, we have had a uniform system of rights, protec­ted nation­ally by the Consti­tu­tion, the U.S. Supreme Court, and laws passed by Congress. Now the Supreme Court is busily revok­ing those national protec­tions. On voting rights. Soon, appar­ently, on abor­tion rights. The draft implies marriage equal­ity, LGBTQ equal­ity, and even contra­cep­tion could be next. Twenty-six states are certain or likely to ban some or all abor­­tions as soon as Roe is over­­turned. Of those, 13 have trig­ger laws, which would go into effect right after the Court rules. Many of the same states that have passed voting restric­tions are assail­ing LGBTQ rights. Conser­vat­ive states would have one social order, the rest of the coun­try another.

The draft raises once again the place of the Supreme Court in our polit­ical system and shows just how out of balance that system is. The Court’s legit­im­acy is a fragile thing, given that we have given so much power to life­time-appoin­ted judges. Now those judges seem eager to use that author­ity to entrench minor­ity power. Demo­crats won seven of the last eight popu­lar votes for the pres­id­ency, the longest such winning streak in Amer­ican history. Yet Repub­lican pres­id­ents picked six of the nine justices. Justice Neil Gorsuch gets to cast this decid­ing vote only because Sen. Mitch McCon­nell refused to allow a vote for the first time in a century at least on a Supreme Court nomin­a­tion, hold­ing the seat open for a year. 

The justices — each the product of a 40-year conser­vat­ive legal move­ment centered on judi­cial nomin­a­tions — test­i­fied that Roe was “settled law” (as Alito and Justice Brett Kavanaugh put it). Gorsuch asser­ted it “is a preced­ent. It has been reaf­firmed.” Justice Clar­ence Thomas claimed under oath never to have discussed it or had an opin­ion on Roe when it was decided, even though he was at Yale Law School in 1973. No relev­ant facts have changed; no new ethical or medical or social science data has created new under­stand­ings. Public support for abor­tion rights is unchanged. All that changed was the person­nel of the Court.

Major rulings often shift polit­ics — and can create a back­lash. That happened after Dred Scott estab­lished in 1857 that Congress could not bar slavery from territ­or­ies, a ruling that helped sweep Repub­lican Abra­ham Lincoln into the White House (and thus precip­it­ated the Civil War). It happened after Brown v. Board of Educa­tion, which led to “massive resist­ance” by south­ern segreg­a­tion­ists (though that decision also inspired civil rights activ­ists). And it certainly happened after Roe itself, which helped spur overtly polit­ical organ­iz­ing by oppon­ents that helped shape the polit­ical align­ment of the past half century.

Conser­vat­ive politi­cians have always seemed to have a cynical rela­tion­ship with their anti-abor­tion base. Conser­vat­ive justices have domin­ated the Court for decades, yet were some­how always one vote shy of issu­ing the long-hoped-for ruling. Well, the Supreme Court major­ity and the extrem­ist politi­cians in many states seem to have finally reached their goal. They may reap the polit­ical whirl­wind.  

That kind of back­lash is far from auto­matic. When Texas effect­ively banned abor­tion last year, and the Supreme Court let it do so without a major ruling, head­lines lasted only a few days. The reac­tion to this draft opin­ion suggests some­thing is very differ­ent. The Supreme Court won’t protect our rights. That is up to all of us — at the ballot box, in legis­latures, and on the streets.