June 2022 Church & State Magazine

Reversing Roe: Leaked Supreme Court Opinion Endangers Legal Abortion

  Rob Boston

The Politico story posted online the evening of May 2 hit the nation with the force of a veritable atomic bomb: The Washington, D.C.-based publication had somehow obtained a draft copy of a Supreme Court ruling overturning Roe v. Wade, the landmark 1973 decision that established a legal right to abortion in America.

Politico reporters Josh Gerstein and Alexander Ward were blunt in their description of the draft, written by Justice Samuel A. Alito, calling it “a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protection of abortion rights.”

Indeed, Alito called Roe “egregiously wrong from the start” and asserted that the right to abortion is not “deeply rooted in the Nation’s history or traditions.” His conclusion was stark: Roe and a subsequent ruling, 1992’s Planned Parenthood v. Casey, “must be overruled. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

The fate of legal abortion has been hanging by a thread since the high court agreed last year to hear a case from Mississippi called Dobbs v. Jackson Women’s Health Organization. The case challenges a state law that bans most abortions after 15 weeks, and during oral arguments on Dec. 1, the court’s far-right faction made its antipathy to Roe clear.

Given the court’s ultra-conservative majority, observers expected a ruling that would significantly erode abortion rights by upholding the Mississippi law. A complete overturning of Roe was always a possibility, and the leaked draft was stunning confirmation the court is prepared to take that step.

Sources told Politico that Justices Brett Kavanaugh, Clarence M. Thomas, Neil M. Gorsuch and Amy Coney Barrett were prepared to join Alito’s opinion. The court’s liberal bloc – Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan – were writing dissents. The position of Chief Justice John G. Roberts remained fuzzy, but The Washington Post, citing anonymous sources at the court, reported that Roberts was prepared to join an opinion upholding the Mississippi law but leaving at least a shell of Roe and Casey in place. The other five conservatives, however, demurred and insisted on overturning those rulings outright.

Roberts confirmed that the Alito draft is authentic but said it’s not yet a final ruling of the court and could change. The justices are expected to release a final opinion in Dobbs by the end of June. Roberts also said he will lead an investigation into the source of the leak.

Americans United, which supported Roe when it was handed down in 1973, blasted the draft opinion as a significant step backwards for reproductive rights in America.

“Justice Alito’s draft opinion makes clear that this ultraconservative Supreme Court will soon abolish the Constitutional right to an abortion,” said AU President and CEO Rachel Laser in a media statement. “The right to an abortion is a civil and human right that is essential to our health, equality and freedom.”

Added Laser, “Abortion bans are an attack on religious freedom. They attempt to impose one religious viewpoint on all of us. Justice Sotomayor made that clear when she asked Mississippi about the justification for its abortion ban: ‘How is your interest anything but a religious view?’ Religious freedom demands the right to an abortion so people can make their own decisions according to their own principles.”

Laser noted that Alito’s ruling, if it proves to be final, spells trouble for other rights.

“The end of Roe is just the beginning,” she said. “Next on the hit list are a broad array of protections for personal liberty. The same line of attack Alito uses on Roe and Casey can also be employed against contraception (Griswold v. Connecticut), interracial marriage (Loving v. Virginia), mar­riage equality (Obergefell v. Hodges) and basic LGBTQ rights (Law­rence v. Texas).”

Legal observers parsed the Alito ruling and noted that it leans heavily on some unusual sources. It contains several references to Sir Matthew Hale, a 17th-century British jurist who, according to Alito, was an “eminent” authority on common law.

What Alito failed to note is that Hale believed women essentially had no rights and were property of men. Hale pioneered the idea that married women can’t be raped by their husbands. In 1662, he sentenced two women to death for witchcraft.

The draft sparked immediate political fallout. Appearing on CNN’s “State of the Union” May 8, Mississippi Gov. Tate Reeves (R) refused to rule out banning certain forms of contraceptives, such as Plan B pills and intrauterine devices.

If Roe goes down, states will be free to put onerous restrictions on abortion or ban it outright. Experts in the pro-choice community believe that about half of the states will ban the procedure. (Some may allow it in case of rape, incest or when the mother’s life is threatened, but others may permit no exceptions.) Several states have already passed “trigger laws” banning abortion that will automatically go into effect if Roe is overturned.

With a patchwork of laws like this varying from state to state, women of means in areas where abortion is illegal will travel to states where it’s permitted. Anti-abortion forces are already thinking ahead to this. Some groups have proposed a national law making abortion illegal everywhere.  Another reactionary notion is to punish traveling out of state to obtain abortions banned by the state the woman or girl in question lives in.

The Washington Post reported May 2 that anti-abortion organizations have been meeting with allies in Congress to plot their next move if Roe is overturned and Republicans take control of Con­gress after November’s midterm elections.

“This is a whole new ballgame,” Kristan Hawkins, president of Students for Life Action, told The Post. “The 50 years of standing at the Supreme Court’s door waiting for something to happen is over.”

The anti-abortion groups, The Post reported, have also reached out to 10 possible 2024 GOP presidential candidates, including Donald Trump, to ensure that they’d be willing to sign a law that bans abortion nationwide.

Inevitably, as noted above, some states will attempt to punish women who get abortions elsewhere. In Missouri, a state legislator has introduced a bill designed to intimidate anyone who gets an abortion in another state or facilitates one.

Under the bill, sponsored by Rep. Mary Elizabeth Coleman (R-Arnold), private citizens could file lawsuits against anyone who helps a Missouri resident obtain an abortion in another state. Enforcement of the law would be left up to state residents, not the government, but the prospect of people being dragged into court and forced to defend themselves at considerable cost is clearly intended to scare women seeking abortions.

A similar measure is pending in Texas, already the state legally rewarding vigilantes for reporting anyone who participates in abortions with a $10,000 bounty imposed on abortion seekers, providers and facilitators. In Washington, D.C., U.S. Sen. Marco Rubio (R-Fla.) has introduced a bill that would punish companies whose health care plans pay for employees to get out-of-state abortions.

In Tennessee, Gov. Bill Lee (R) has signed legislation making it illegal for anyone to use telehealth meetings or the mail to provide medications that cause abortion. Those who violate the law could be subjected to a fine of $50,000.

Louisiana lawmakers are going even further. Under proposed legislation, abortion would be considered homicide, opening doctors who provide them and women who get them up to charges of murder and imprisonment if found guilty. The bill is so strict that even emergency contraception, which is often provided to women who have been sexually assaulted, would be illegal.

In his draft opinion, Alito criticized the Roe ruling for politicizing the issue and dividing Americans. Ironically, his opinion will only give the nation more of the same, given that a flurry of anti-abortion bills is expected in the states.

The situation, Laser said, looks bleak – but she vowed that Americans United, which has supported the right of Americans to make personal decisions about reproduction without religious interference, will remain in the fight.

“The religious extremists and their lawmaker allies who helped pack the Supreme Court under Trump are willing to destroy our democracy to force all of us to live by their narrow beliefs,” Laser said. “They want a nationwide abortion ban. They will come for contraception. They will come for marriage equality and LGBTQ rights. They will come for racial justice. They will not be satisfied until they have codified a white Christian nation.

“The foundational principle of separation of church and state safeguards our right to live and believe as we choose,” Laser concluded. “Our laws do not allow anyone to use their religious beliefs to harm others. Allowing one person’s religious beliefs to dictate another’s personal medical decisions is the very definition of harm. We’ll say it again: Reproductive freedom is religious freedom.”

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