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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.