.[Audio edition here]
On Monday, May 2, 2022, Politico leaked a copy of a draft opinion by Justice Alito on behalf of the Supreme Court’s reactionary majority that overrules both Roe v. Wade and Casey v. Planned Parenthood. If the draft opinion becomes final, the Constitution will no longer protect a woman’s right to control her reproductive choices—even in cases of rape or incest. The decision will upend a half-century of settled law and widespread societal acceptance of the right of women to make reproductive choices in the privacy of familial and medical consultations. The decision will appoint the government as the arbiter of family planning and permit the criminalization of abortion—for women, for medical providers, and for Uber drivers who transport women to hospitals and clinics.
This is just the beginning.
This is just the beginning because in overruling Roe and Casey, the reactionary majority removes an underpinning of other personal liberties recognized over the last century. Those modern liberties emanate from a right that every American assumes is protected by the Constitution even though it is not explicitly mentioned—the right to privacy. In overthrowing that fundamental right, the reactionary majority has cleared a path to abolish liberties that, like reproductive choice, are now accepted as part of modern American society. The key passage from the draft opinion is this:
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, including the one to which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”
The right to abortion does not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law.
I ask you to re-read the above passage and substitute for the word “abortion” any other modern liberty not mentioned in the Constitution: the right to use contraception, same-sex marriage, the right of same-sex couples to adopt children, marriage between different “races,” the right of any consenting adults to engage in sex, the right of unmarried couples to live together, and the rights of LGBTQ people to be treated with equal dignity.
Each of the above rights—now widely accepted—was criminalized or prohibited in many U.S. states until the latter part of the 20th century. Under Justice Alito’s reasoning, because the Constitution “makes no reference to those rights” and they were “unknown” in American jurisprudence until recently, the Constitution affords them no protection. Alito does handsprings to claim the draft ruling does not reach other rights rooted in the same legal ground as Roe and Casey. But there is no difference under Alito’s reasoning between abortion and contraception, same sex marriage, same-sex adoption, and bans against “fornication,” “sodomy,” cohabitation, and “miscegenation.”
This is just the beginning.
Anti-abortion groups are already plotting to pass a national ban on abortion if and when Republicans seize control of both chambers of Congress and the presidency. See Washington Post, The next frontier for the antiabortion movement: A nationwide ban. Per the Post,
Leading antiabortion groups and their allies in Congress have been meeting behind the scenes to plan a national strategy that would kick in if the Supreme Court rolls back abortion rights this summer, including a push for a strict nationwide ban on the procedure if Republicans retake power in Washington.
Supporting a national ban on abortion will become a litmus test for Republican candidates in local, congressional, and presidential elections. Per the Post,
The effort, activists say, is designed to bring a fight . . . to the national political stage — rallying conservatives around the issue in the midterms and pressuring potential 2024 GOP presidential candidates to take a stand.
Justice Alito’s draft opinion is equal parts offensive and patronizing. He refers to physicians as “abortionists”—an ad hominem attack beneath the dignity of a Court addressing what Alito calls “a profound moral issue.” And Alito notes that “Women are not without electoral or political power”—as if that justifies stripping them of constitutional protections at the core of their personhood.
There is every indication that the reactionary majority has adopted Alito’s reasoning and will overrule Roe and Casey in their entirety. The Court will likely do so by a 5-4 majority engineered by The Federalist Society and paid for by the Koch brothers. As Lawrence O’Donnell noted in his broadcast on Monday evening, four of the five justices in the majority that will overrule Roe and Casey were appointed by presidents who lost the popular vote. (Alito, appointed by G.W. Bush, and Gorsuch, Kavanaugh, and Barrett, appointed by Trump.)
The reactionary majority has “chosen sides” in a partisan debate. Pew Research Center reported in 2021 that 59% of Americans believed abortion should be legal in most cases while 39% thought it should be illegal in most cases. But that divide masks the partisan split, where 89% of liberal Democrats support abortion rights, compared to only 22% of conservative Republicans who support abortion. The Supreme Court has adopted the religious, social, and cultural position of the conservative Christian wing of the Republican Party in interpreting the Constitution.
But this is just the beginning.
For Americans who value personal liberties not explicitly mentioned in the Constitution, overruling Roe and Casey should be the legal equivalent of the first volleys of the American Revolution at Lexington and Concord. There is no logical stopping point for the reactionary majority’s adoption of a conservative Christian agenda or the further cultural radicalization of Republican candidates. We must be the stopping point.
The only defense against the further erosion of personal liberties is the will of the American people—a will that overwhelmingly supports reproductive rights, same-sex rights, human dignity, and personal agency. We have seen this judicial mugging coming for years, but we have not roused ourselves to the immediacy of the threat. When the Oklahoma legislature passed a bill last week banning all abortions after six weeks, about 100 protestors showed up at the Oklahoma state capital building. See picture embedded in this link: NYTimes, Oklahoma Legislature Passes 6-Week Abortion Ban Modeled on Texas Law. The women who fought for a century for the right to control their reproductive choices would have been stunned to see such a modest protest as a state legislature revoked that hard-won right.
The moment of crisis is upon us. There is no room for wishful thinking that the reactionary majority will act “incrementally.” There is no room for temporizing or fantasizing that a narrowly divided Congress will come to the rescue with national protection for abortion. There is no time for 100-person protests as conservative minorities abolish rights protected by the Constitution. And we have no time to wallow in despair or mourn what has been lost. We must reclaim our stolen liberty with bold, decisive action.
We must recognize a cold political truth: The party that controls the presidency and has a solid majority in the Senate controls Supreme Court jurisprudence. I wish it were otherwise, but we are fools to pretend it isn’t so. If we hope to preserve our remaining hard-won rights and reclaim the right about to be taken from American women, we must be pragmatists and agitators. We must recognize that our personal liberties are on every ballot in every election in every state, county, and city.
Let us hope that in our shock and dismay, we finally rouse ourselves to act with the urgency warranted by a rogue Supreme Court unmoored from the Constitution. The Court should be expanded to dilute the power of the illegitimate reactionary majority. Stop worrying that expanding the Court will erode its legitimacy; it is far too late for that concern. Stop worrying that the Court will become a pawn in partisan politics; it is far too late for that concern. Start worrying about what the reactionary majority will do next. And then vote like your personal liberties depend on every vote you cast. Because they do.
This is just the beginning. We have not lost. The setback revealed today is not the end. It is just the beginning of our generation’s effort to reclaim American democracy as our own. Every generation before us rose to that task. Ours will not be the first generation to falter. Let’s get out there and rejoin the battle. The brave band of 100 protestors in Oklahoma is waiting for us.
Stay strong and keep the faith! Talk to you tomorrow!