Roe v. Wade is dead. That’s kind of a problem.
A crowd of people gather outside the Supreme Court, early Tuesday, May 3, 2022 in Washington.
May 5, 2022
On May 2, a true rarity in U.S. politics took place: a Supreme Court decision was leaked. As reported, Politico was able to get their hands on a draft of a majority opinion by extreme conservative Justice Samuel Alito implying that the nation’s highest court plans to strike down the Roe v. Wade decision which made abortion legal nationwide. If the decision holds true, it marks the end of the current period of safe and legal abortions.
The case being decided, Dobbs v. Jackson Women’s Health Organization, concerns the Mississippi state legislature’s decision to pass a law banning abortion after 15 weeks. Though the law was struck down in lower courts, it was appealed to the Supreme Court which seems like it will side with Dobbs. The ruling will not only strike down Roe but also the 1992 Planned Parenthood v. Casey decision which served to further solidify Roe.
The intention of this piece isn’t to go into the morality of the topic or the science behind abortion. Additionally, it is not intended to relitigate the 2016 election concerning whether or not Hillary Clinton or Bernie Sanders are at fault (though I will discuss fault later on). This is meant to look at the decision (particularly, the words Alito uses) and what it means for not only abortion in this country but civil rights at large.
Firstly, one has to look at the legal principle Roe was based upon: substantive due process. Essentially, this is the right to privacy; the government cannot and should not interfere with matters of a citizen’s personal business. If the draft ruling rings true, it signals a massive blow to this legal theory.
The bulk of Alito’s logic for overturning Roe seems to be based around my absolute favorite belief of originalism: if the Constitution doesn’t explicitly mention something, it doesn’t matter. Alito writes, “…The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.” That is stupid. That is “Air Bud” logic.
Alito also attacks Roe for being wrong from the offset, arguing it was based upon flimsy ground, and that rather than ending the conservation, it made it into even more of a divisive issue. So of course, that means that revoking it will totally unite us and give us finality, right?
Additionally, Alito heavily emphasizes the conservative “state’s right” argument concerning abortion. He states, “In the years prior to [Roe v. Wade], about a third of the States had liberalized their laws, but Roe abruptly ended that political process. It imposed the same highly restrictive regime on the entire Nation, and it effectively struck down the abortion laws of every single State.”
Basically, Alito argues that if states want to make abortion illegal, they should be able to, and vice versa. What Alito misses (intentionally or otherwise) is the fact that, in a lot of red states that would make abortion illegal, liberal democracy doesn’t really exist. This is thanks to restrictive voter laws and partisan gerrymandering.
Additionally, that argument falls flat on its face when considering abortion is a popular policy. Abortion, across the board, is supported by a majority of Americans. Even amongst pro-life advocates, total bans (which completely ban abortions, even concerning medical issues and rape or incest) are generally unpopular.
The argument of “let the states decide” becomes idiotic when you realize that a lot of states intend to act against the will of their people, and thanks to the anti-democratic initiatives listed above, no one will be able to hold them accountable.
Overturning Roe will reap disaster in this country. As abortion advocates have argued for decades, overturning Roe will not end abortions in the U.S.; it will end safe abortions. This is seen in foreign countries that have criminalized abortion. In Brazil, for example, 250,000 women are hospitalized due to complications from back-alley abortions every year and about 200 of them die. Make no mistake: people will die because of this decision.
However, perhaps the biggest ripple effect of this decision is how it affects substantive due process. Roe was not the only case that utilized substantive due process and Alito is well aware of this fact. In his draft, Alito name drops Obergefell v. Hodges (which legalized gay marriage) and Lawrence v. Texas (which legalized sodomy) as examples of decisions that were decided on similarly “faulty” grounds as Roe. Simply put, Alito is signaling that gay marriage, and perhaps even the right to legally be out as gay, is on the chopping block next. And, in a day and age where conservatives are increasingly labeling LGBTQ+ folks (especially trans people) as “groomers” and “pedophiles”, this doesn’t bode well for marriage equality.
Gay marriage isn’t even the only marriage right possibly in danger here; interracial marriage may even be threatened. Loving v. Virginia, the case that ruled that states cannot restrict marriage on the basis of race, was also decided on the grounds of substantive due process. Making this even more possible is the fact that at least one elected official, Indiana Republican Sen. Mike Braun, expressed his belief that interracial marriage should be decided at the state level.
In terms of women’s reproductive care, it is believed that Griswold v. Connecticut, which legalized contraceptives, is also in danger. The logic on this one escapes me as contraceptives are used to prevent pregnancy. Fewer pregnancies would mean fewer abortions, would it not? Well, I guess that’s on me for trying to deduce logical reasoning from conservative culture war nonsense.
The Dobbs decision doesn’t just affect abortion; it creates a ripple effect throughout all civil rights cases in the last 60 years.
So you might be wondering: whose fault is this? Is it Mitch McConnell’s, who using hypocritical, nonsensical logic, stole two Supreme Court seats? Is it the Democratic Party’s, who for years urged us to “vote” every time abortion was under attack and refused to codify Roe into U.S. law when they had a government trifecta that included a filibuster-proof Senate majority? Is it disingenuous, lying moderates like Maine Sen. Susan Collins’? Is it the justices themselves, which include two (Neil Gorsuch and Brett Kavanaugh) who conceded Roe as “law of the land” during their confirmations and one (Amy Coney Barrett) who hinted at her willingness to strike it down during hers?
I would answer that yes, all the above parties deserve their fair share of the blame for this. However, there is one name that seems to not come up as a guilty party often when discussing the harmful actions being conducted by the Supreme Court.
That person’s name is Ruth Bader Ginsburg.
Ruth Bader Ginsburg, in an act of supreme narcissistic hubris, set women’s rights back half a century, which is incredibly ironic considering her status as a feminist icon. In 2013, when she met with then-President Barack Obama, she refused to retire during a time when Democrats controlled the Senate. She also refused calls in 2014.
Thus, when Donald Trump took over, Ginsburg, a cancer-ridden octogenarian, was unable to give up her seat and eventually lost her battle with cancer. While many liberals cheered her perceived “resilience” at the time (notably House Speaker Nancy Pelosi’s daughter, Christine), this should be seen as the choice that ultimately ended choice in this country. That’s not speaking ill of the dead; it’s simply the truth, whether liberals want to admit it or not.
This becomes even more emphasized when it was revealed that Chief Justice John Roberts (whose vote is currently unknown as of the time of this writing) is likely opposed to a full repeal of Roe. This means that if Ginsburg had indeed retired in 2013, even if McConnell still went through with his theft of Justice Antonin Scalia’s seat, there would still be five votes on the Court to protect Roe.
In spite of this, there are paths that could be taken to mitigate damage. Blue states can be expected to double down on their pre-existing laws. Additionally, as the ruling isn’t expected to be put in place until it is formally announced in June or July, abortion is still legal in the U.S. for the time being. Lastly, one Twitter thread theorizes that President Joe Biden could utilize dual federalism and keep abortion legal federally even as states criminalize it (the inverse of the logic behind current marijuana legalization).
There’s only one problem with that: it’s not going to happen. The Democratic Party is going to take this lying down. They, as a whole, are incompetence incarnate and utterly useless at almost every level. Sure, they’ll virtue signal, they’ll send out emails asking for donations, and they’ll shake their fists at every anti-choice bill that passes in the foreseeable future but they won’t do anything to reverse the damage. They’re Democrats after all.
As for the conservative side of things, the reaction thus far has been surprisingly muted. I can only think this is because this is a leak and not the actual finalized ruling. That’s not to say that some, like QAnon proponent and insurrection-supporting Rep. Marjorie Taylor Greene, didn’t take a victory lap. However, many conservatives and Very Serious People are currently up in arms concerning the fact that this leaked to begin with because it supposedly “undermines the trust and integrity of the Court” (as if that’s a thing that still exists).
Speaking of, this situation brings to light the insane amount of power the Supreme Court has amassed in the modern age to the point where its existence is becoming more and more of a threat to individual and civil rights.
This isn’t merely me lashing out. Anyone who knows me knows that I have been long opposed to the Supreme Court in its current iteration. I know America is fond of hero-worshiping every single decision ever made by the Founding Fathers but I’m starting to think that giving nine practically unchecked philosopher-kings appointed for life the final say on everything in this country wasn’t such a great idea.
That’s not even getting into the Court’s other problems (which is another issue entirely, so I won’t dive in too deep). Firstly, the Court, especially in the post-Roe era, has become increasingly filled with right-wing hacks hand-picked by The Federalist Society in order to pander to conservative cultural grievances. Additionally, five of the Court’s nine members (the aforementioned Gorsuch, Kavanaugh and Barrett along with Roberts and Alito himself) were appointed by presidents that did not win the popular vote and only won thanks to the Electoral College (George W. Bush and Donald Trump). Lastly, thanks to the filibuster halting any and all progress in Congress, the Court has seemingly stepped up to act as a secondary legislative body and nothing showcases that better than Dobbs.
Ultimately, I understand this is overwhelming and utterly depressing. You might be thinking to yourself, “what can we do?”. Unfortunately, not much. Anti-Roe advocates have the votes. If this decision holds up, it’s over.
The best thing we can do, for the time being, is support each other. I applaud the women who, just hours after the story broke, gathered outside the Supreme Court building in Washington D.C. and protested the revocation of their rights. Additionally, abortion organizations are seeing donations left and right since the news broke (if you’d wish to donate to one such organization yourself, a state-by-state list can be found here).
But, we have to be ready when the official ruling comes, because there is going to be a crackdown the likes of which these recent generations have never seen. Ohio is expected to be one of the initial states to ban abortion once Roe is revoked. One such bill is a total ban whose chief sponsor is a state representative who claimed that rape presented a “opportunity” for women. Things are only going to get worse. People are going to get hurt. The Supreme Court knows this. And they don’t care.
Patrick Kane is a junior from Lakewood, Ohio and the World News Editor. He can be reached at [email protected], on Twitter at @therealpatkane, or on Instagram at pkdonuts5.
