Nightmare hurtling toward reality
Texas no longer can rely on a group of learned people in black robes 1,000 miles away to ensure basic rights.
Women across this nation, many of whom have never known an America without constitutionally protected reproductive rights, awoke Tuesday to the realization that their ability to control their own bodies, their own family planning decisions and career trajectories, indeed, their own destinies, may soon teeter precariously on factors such as geography and household income.
A leaked draft of a U.S. Supreme Court opinion written by Justice Samuel Alito, first reported by Politico, would overturn a nearly 50-year-old precedent that guaranteed abortion rights nationwide and instead return the issue back to the states to decide for themselves. In states such as Texas, where a so-called “trigger” law sits ready on the books to ban abortion outright, a nightmare scenario is hurtling toward reality, and a frightful era that seemed to exist only in books or in our grandmothers’ memories — one of coat hangers and back alleys — seems inconceivably near.
These are the consequences of Donald Trump’s disastrous one term in office, during which he was able to push through three appointees who have now joined together with the Supreme Court’s two most radically conservative members to throw the country into a democratic crisis. They are effectively imposing a fate on women in Republican-controlled states — an outright ban on abortion — that the majority of American adults do not condone. While attitudes on abortion are varied and entrenched, most Americans support some access to the procedure with restrictions. Even in Texas, only 26 percent believe abortion should be illegal in all instances.
The impact will be harshest on lowincome women who won’t have the funds to travel to another state to escape the prohibition. The societal consequences of banning abortions and forcing women to carry unplanned pregnancies to term, especially in families already struggling to provide for other children, are well-documented. In Texas, where health care is regarded as a luxury for some and not all, and birth control is harder to access as family planning clinics dwindle, the cruelty of outlawing abortion is hard to overstate.
In Alito’s opinion, the majority strikes down the seminal 1973 Texas decision, Roe v Wade, in its entirety, finding that it was “egregiously wrong” when it was decided. Casey v Planned Parenthood, a 1991 case upholding the constitutional right to an abortion even as it allowed some new restrictions, is also overturned in the draft opinion.
Though his opinion spills over 98 pages, counting appendices, Alito’s reasoning is simple. Since the Constitution doesn’t mention the word abortion, any claim that there is a constitutional right to one must show that legal abortions have been “deeply rooted in our nation’s history and traditions.”
Alito concludes they have not. “On the contrary,” he writes, “an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of our common law.”
That’s not as clear-cut as he makes it, however. In Roe, Justice Harry Blackmun also reviewed the history of abortion, from ancient times to the present. He concluded that American statutes making abortion a crime were relatively recent, dating only to the mid-19th century. Abortion in the earliest stages of pregnancy was not an indictable offense under the English common law, he wrote, and schools of thought in ancient Greece and Rome differed on whether it was permissible.
But even if Alito is right that legal abortion is not “deeply rooted” in our culture, he leaves out the fact that for much of history women were denied nearly all rights we now take for granted — women were unable to vote, to own property, to run for office, even to decide whom they will marry or which schools their children would attend. Surely Alito has not forgotten that even in this country, founded amid the high tide of the Enlightenment, women were denied the right to vote until 1920, 131 years after our Constitution was adopted.
The opinion circulated Monday evening is a nonbinding draft, subject to change. That it was leaked at all is disturbing — no such leak of a draft opinion has ever occurred in the modern history of the court. Chief Justice John Roberts said Tuesday that the court would investigate the breach, which he called a “betrayal.” The scandal will certainly strain trust within the court and won’t help shore up Americans’ trust in the institution itself.
More damaging, though, is the revelation that Trump’s conservative appointees misled the American public when they testified in congressional hearings that they considered Roe settled law and respected the 40-year precedent even if they personally disagreed with the decision itself or regarded abortion as immoral.
The draft opinion now shows five votes in favor of overturning Roe. It’s unclear how Roberts plans to vote and it wouldn’t be unheard of for one of the four other conservatives signing onto Alito’s draft opinion — Clarence Thomas, Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett — to reconsider between now and when the final decision is issued, probably in June.
Such a shift is obviously unlikely. This is the court that conservative abortion opponents have longed for, and finally achieved through Trump.
Washington Post columnist Paul Waldman recounted in a column last year a telling conversation from December between talk show host Laura Ingraham and her guest, Sen. Ted Cruz of Texas. She was furious at even the prospect of the court not overturning Roe. “If we have six Republican appointees on this court, after all the money that’s been raised, the Federalist Society, all these big fat-cat dinners — I’m sorry, I’m pissed about this — if this court with six justices cannot do the right thing here,” she said, then Congress should “blow it up” and limit the court’s authority.
Not missing a beat, Cruz immediately pledged to do his part. “I would do that in a heartbeat,” Cruz responded.
Alito’s opinion would decide a case out of Mississippi, where lawmakers made abortion illegal after 15 weeks. That law, two federal courts have ruled, flagrantly violates the Constitution, as interpreted by the Supreme Court in Roe and in Casey.
Overturning Roe could also undermine other rights to which Americans have grown accustomed, such as access to contraceptives and gay marriage, that likewise hinge on a right to privacy. Even though the word “privacy,” like the word “abortion,” does not appear in the Constitution, justices have held for a century that it can be extrapolated from the text and precedent.
“This right of privacy ... is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved,” Blackmun wrote for the court in Roe.
In upholding the core of Roe in 1991, a newly conservative majority ruled 5-4 that the right to abortion had become so ingrained into American life that overturning the decision would be a mistake. It was a decision built on the kind of judicial restraint that conservatives usually applaud.
“Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage,” wrote Justice Sandra Day O’Connor for the court. “Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.”
In the past, the court moved cautiously when overturning a precedent, and usually only after public attitudes toward the conduct in question had changed. That hasn’t happened with abortion, as public support for abortion rights has grown — albeit slowly — in the years since the decision. While it remains highly controversial, a poll conducted last week confirmed that most Americans — 58 percent — favor keeping Roe.
We might not know what the court’s final word on abortion is for another month or more. In the meantime, Americans used to the idea that women should make the decisions about their bodies should get angry — and then they should vote.
We in Texas can no longer rely on a group of learned people in black robes 1,000 miles away to ensure our basic rights — at least not this one. If women want reproductive rights, they must vote for them. Only then will lawmakers — either in the states or in Congress — hear their call.