Leak Shows Supreme Court Prepared to Overturn Abortion Rights
Ugh. I don't even want to have to write about this. I've put off writing about it for at least a day, intending to wait for more perspective on the issue, but political news cycles nowadays move too fast for that. So here's a quick summary of what I know now, organized as Five Things:
1) 48 hours ago Politico published news about a leak of a draft decision from the US Supreme Court overturning the landmark 1973 Roe v. Wade decision that made abortion legal, within certain broadly accepted restrictions, in the US. Link: Politico article, 2 May 2022, updated 3 May 2022. To say the shit hit the fan would be an understatement.
2) The leak is of a draft opinion. It was written in February, based on oral arguments heard in the court in December. The final decision isn't expected until June. Anything could change between now and then. But the draft, written by Justice Samuel Alito and joined (so far) by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, brings together a majority count of 5 justices who've strongly opposed abortion in past decisions and other writings. Three of these justices were nominated to the court by a president who boasted that choosing justices who would overturn Roe v. Wade was his chief concern.
3) Overturning Roe v. Wade is enormous. It's a huge precedent that has guided the lives of women, by affirming for them the right to control their own bodies and reproduction, for nearly 50 years. In federal jurisprudence there is the policy of stare decisis. Latin for "stand by things decided", it means that judges should respect the precedent of previous decisions on an issue rather than whipsawing the law back and forth when they happen to disagree with it. Other Supreme Court decisions have been overturned, but few if any as major as Roe. The only one that comes to mind is Plessy v. Ferguson, the 1896 decision that upheld racial segregation through the sham doctrine of "separate but equal". It was overturned by Brown v. Board of Education in 1954. Some try to add Dred Scott to that list.... But (a) Dred Scott was clearly a terrible decision, not only affirming slavery in the US but extending some of its practices to non-slave states; and (b) Dred Scott was not overturned by the courts. It was overruled by the 13th Amendment to the Constitution.
4) The impact of this change will be swift. First, numerous states have "zombie" laws banning abortion since before Roe v. Wade in 1972. Many of those laws, rendered unenforceable for nearly 50 years, were never repealed. They could be enforced immediately after a new Supreme Court decision. Second, approximately 13 states have passed "trigger" laws to ban abortion. These laws say that if the Supreme Court permits abortion to be outlawed by the states, those states will do so. Third, there are all the other states controlled by Republicans that I expect will have new laws banning abortion in place by the end of the year. By the end of the year it's quite likely the abortion would be outlawed in a majority of the states in the US.
5) While the political left and center are outraged by this draft decision- a recent survey found that 60% of Americans were in favor of retaining Roe v. Wade as-is- surprisingly the political right is, too. Except the right is going nuclear about the leak. Fox News in its first daily cycle of coverage used the word leak twice as much as abortion. Conservative politicians have been all about "the leak", too. And they are apoplectic about it. Prominent politicians like Fla. governor Ron Desantis are calling it an insurrection. Imagine that... the political right has just been granted the top item on their wish list for the past 50 years- and all they can do is rail about how unfair it is. Understand, though, this is part of a bad-faith ploy. By shifting attention to the leak rather than abortion, they crowd abortion out of the news stream. And they need to because this position on abortion is unpopular with a majority of the country. But even worse, their deliberate use (and frequently reuse) of terms like insurrection is a stratagem to minimize the actual mob insurrection against the US Capitol on January 6, 2020. They are deliberately hijacking the term to scramble what it means in people's minds and establish a false equivalency.
1) 48 hours ago Politico published news about a leak of a draft decision from the US Supreme Court overturning the landmark 1973 Roe v. Wade decision that made abortion legal, within certain broadly accepted restrictions, in the US. Link: Politico article, 2 May 2022, updated 3 May 2022. To say the shit hit the fan would be an understatement.
2) The leak is of a draft opinion. It was written in February, based on oral arguments heard in the court in December. The final decision isn't expected until June. Anything could change between now and then. But the draft, written by Justice Samuel Alito and joined (so far) by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, brings together a majority count of 5 justices who've strongly opposed abortion in past decisions and other writings. Three of these justices were nominated to the court by a president who boasted that choosing justices who would overturn Roe v. Wade was his chief concern.
3) Overturning Roe v. Wade is enormous. It's a huge precedent that has guided the lives of women, by affirming for them the right to control their own bodies and reproduction, for nearly 50 years. In federal jurisprudence there is the policy of stare decisis. Latin for "stand by things decided", it means that judges should respect the precedent of previous decisions on an issue rather than whipsawing the law back and forth when they happen to disagree with it. Other Supreme Court decisions have been overturned, but few if any as major as Roe. The only one that comes to mind is Plessy v. Ferguson, the 1896 decision that upheld racial segregation through the sham doctrine of "separate but equal". It was overturned by Brown v. Board of Education in 1954. Some try to add Dred Scott to that list.... But (a) Dred Scott was clearly a terrible decision, not only affirming slavery in the US but extending some of its practices to non-slave states; and (b) Dred Scott was not overturned by the courts. It was overruled by the 13th Amendment to the Constitution.
4) The impact of this change will be swift. First, numerous states have "zombie" laws banning abortion since before Roe v. Wade in 1972. Many of those laws, rendered unenforceable for nearly 50 years, were never repealed. They could be enforced immediately after a new Supreme Court decision. Second, approximately 13 states have passed "trigger" laws to ban abortion. These laws say that if the Supreme Court permits abortion to be outlawed by the states, those states will do so. Third, there are all the other states controlled by Republicans that I expect will have new laws banning abortion in place by the end of the year. By the end of the year it's quite likely the abortion would be outlawed in a majority of the states in the US.
5) While the political left and center are outraged by this draft decision- a recent survey found that 60% of Americans were in favor of retaining Roe v. Wade as-is- surprisingly the political right is, too. Except the right is going nuclear about the leak. Fox News in its first daily cycle of coverage used the word leak twice as much as abortion. Conservative politicians have been all about "the leak", too. And they are apoplectic about it. Prominent politicians like Fla. governor Ron Desantis are calling it an insurrection. Imagine that... the political right has just been granted the top item on their wish list for the past 50 years- and all they can do is rail about how unfair it is. Understand, though, this is part of a bad-faith ploy. By shifting attention to the leak rather than abortion, they crowd abortion out of the news stream. And they need to because this position on abortion is unpopular with a majority of the country. But even worse, their deliberate use (and frequently reuse) of terms like insurrection is a stratagem to minimize the actual mob insurrection against the US Capitol on January 6, 2020. They are deliberately hijacking the term to scramble what it means in people's minds and establish a false equivalency.