"We Hold That Roe And Casey Must Be Overruled"

Because a woman's uterus is the property of the State...In His Eye

Like millions of other Americans, I tuned into The Rachel Maddow Show last night expecting to hear about the war in Ukraine, the January 6th committee, or something related to the news of the day. Instead, what I heard was shocking, surprising, though not altogether unexpected. A few minutes before airtime, Politico had posted a draft copy of a Supreme Court decision that would overturn Roe v. Wade.

The draft, written by Justice Samuel Alito, doesn’t just overturn Roe. It obliterates the 1973 decision that guaranteed American women the right to safe, legal abortion services. Though it’s only an initial draft opinion, the document's leak sets a frightening precedent for an institution that continues (no longer credibly) to hold itself up as apolitical.

The draft opinion is a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision – Planned Parenthood v. Casey – that largely maintained the right. “Roe was egregiously wrong from the start,” Alito writes.

“We hold that Roe and Casey must be overruled,” he writes in the document, labeled as the “Opinion of the Court.” “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

It’s the first time a draft decision has ever leaked from the Court, and while the decision laid out in it isn’t surprising, it’s set off a chain reaction of outrage.

Depending on which poll you take seriously, roughly 70% of Americans support a woman’s right to choose. What we’re talking about, then, is a case of minority rule, the GOP’s collective wet dream.

Losing a constitutional right is a significant historical and legal precedent. Once that dam breaks, it’s not just the right to abortion that will have disappeared. Other rights may eventually be imperiled. Same-sex marriage immediately comes to mind, but inter-racial marriage could also come under scrutiny. Other constitutional rights could be in danger of being rolled back by a Conservative minority.

This scenario was, of course, set up by then-Senate Majority Leader Mitch McConnell (R-KY), who blocked then-President Barack Obama’s nomination of Merrick Garland to fill a vacant Supreme Court seat. His refusal to allow Garland a hearing allowed Donald Trump to nominate Neil Gorsuch, a Conservative committed to overturning Roe.

Trump later nominated Brett Kavanaugh and Amy Coney Barrett, both also committed opponents of abortion rights. By the time he left office, Trump had created a 6-3 Conservative majority on the Supreme Court, and observers realized it was just a matter of time before the Court overruled Roe.

It appears that time is upon us.

So what will happen once the fact that women no longer enjoy bodily autonomy settles into the psyche of Americans? Will they wake up and elect politicians who will pass legislation codifying a woman’s right to choose? Will they recognize that losing the constitutional right to abortion may be a precursor to Conservatives stripping them of other rights?

Or will they merely go about their business and whine about the price of gasoline and milk?

I listened to an interview with historian Jon Meacham this morning in which he made the point that America only works if we respect the letter AND the spirit of the law. Choosing to ignore laws we don’t like- nullification- is a recipe for chaos and lawlessness. A minority using the Supreme Court to take away constitutional rights sets a precedent none of us should want to visit.

Liberal justices seem likely to take issue with Alito’s assertion in the draft opinion that overturning Roe would not jeopardize other rights the courts have grounded in privacy, such as the right to contraception, to engage in private consensual sexual activity and to marry someone of the same sex.

“We emphasize that our decision concerns the constitutional right to abortion and no other right,” Alito writes. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

And yet it’s very likely that Conservatives would take such a decision as casting “doubt on precedents that do not concern abortions” because parsing Supreme Court decisions for hidden meaning is a cottage industry among lawyers.

IF Justice Alito’s draft opinion turns out to be the final word and Roe is obliterated, 24 states have laws on the books that will automatically outlaw abortion. Once Conservatives achieve this “victory,” where will they look next? Does anyone think they’ll lay down their arms and go back to their churches and farms?

Or will they look for their next conquest once they’ve experienced the taste of victory? Will they look for another challenge in their battle to make America something with which they’re more comfortable? Will they go after LGBTQ rights? Religious freedom? The separation of Church and State? The exclusion of religion (Christianity, of course) from public schools? Consensual sex?

Call me cynical, but I’m not one to believe that Conservatives will be satisfied with a one-and-done. Instead, I think they’ll see the abolition of Roe v. Wade as validation of their “righteous” struggle, and they’ll use Justice Alito’s decision as a springboard to go after other constitutional rights. That may not happen tomorrow, next month, or next year, but it will happen. There are too many Conservatives committed to remaking America in their image.

[Insert fearful musings about Margaret Atwood’s The Handmaid’s Tale here.]

Some of the initial reactions may be too much, too soon. It hasn’t even been 24 hours, and the truth is that this was the leak of a first draft legal opinion. We still don’t know who leaked the document or their motive. And there’s still the reality that this is a DRAFT opinion. It may or may not look like the finished product when the decision comes out next month.

What I know is that this proves that elections matter; this is the product of Democratic voters not doing their civic duty and voting. Because Democratic voters stayed home in 2016, Donald Trump was able to nominate three Conservative Supreme Court justices committed to overturning Roe v. Wade. Not only that, Trump filled hundreds of lower-level federal court seats with younger, often wildly unqualified judges. These Right-wing ideologues will impact our lives for generations, perhaps far more and far longer than the Supreme Court will.

Elections matter. And America will for generations pay for not remembering that.

For now, we’re left to wonder what form our future will take. Speaking for myself, I’m wondering why a 30% minority is allowed to overturn a constitutional right. I’m frightened about what other rights that minority might decide to take away from us.

Rights can be challenging to achieve, but, once lost, they can be virtually impossible to restore. That sort of precedent is difficult to overturn. It can require years, perhaps generations of committed effort. I’m not certain that’s something Liberals and Progressives aren’t accustomed to.

It would be easy to overreact; frankly, it would be difficult not to. We could be looking at a very different America that our children and grandchildren will be inheriting. Will we continue to be the beacon of freedom the rest of the world looks to for inspiration? Or will we become another fractured former democracy ruled by a despotic kleptocracy/thugocracy? Will America more closely resemble a corrupt Russian oligarchy…or the Shining City on a Hill?

There’s no way to know what our future holds, of course. There’s plenty to be concerned about, but the America that Justice Alito’s draft opinion forecasts need not become our future.

The minority can only rule if we allow them to. The question, of course, is will Americans take this threat seriously? Or will they let the Right-wing propaganda machine lull them into a false sense of complacency as Conservatives take control and dismantle our democracy?

What’s it going to be, America??

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