Politico published a groundbreaking report on May 2 of a leaked draft opinion written by Supreme Court Justice Samuel Alito detailing a vote to overturn Roe v. Wade. The report sent shock waves throughout the country and painted a haunting picture of a possible future for the United States.
In the court’s history, it has overruled parts of previous cases, but still upheld the “essential holding” of the prior ruling and respected stare decisis, the principle of acknowledging precedent. This is what happened in 1992, in Planned Parenthood v. Casey. While the case overturned parts of Roe, it upheld that women have a right to choose based on the due process clause in the Constitution that protects the life, liberty, and property of individuals.
The leaked Alito draft opposes stare decisis. It suggests that the Supreme Court can disrespect precedent and overrule what was thought by some as settled law, taking away liberties for more than half of the population. It also suggests that future judicial nominees can lie before the Senate, the way Alito did in 2006, about their respect for precedent and the law.
Alito reasons in the draft that abortion isn’t constitutional because it isn’t “deeply rooted in this nation’s history and traditions.” Pondering the national precedents that are rooted in the country’s founding is frightening. Alito’s is a phrase that you would suspect to hear in a Tucker Carlson monologue, but not in a Supreme Court opinion. He goes on to devote an entire page to explain that this ruling is only for abortion and is independent of other rights, like marriage, because abortion undermines “potential life.”
However, Alito’s statement doesn’t provide much in the way of comfort. If the state now has the ability to intervene in rights rooted in privacy and liberty, then which civil rights are bulletproof? Which civil rights are at risk because they too aren’t “deeply rooted in the nation’s history and traditions”? The Constitution does not explicitly say abortion is a right, nor gay marriage or contraceptives. Roe wasn’t just decided on the right to abortion, it was a broad understanding of privacy rights that aren’t explicitly laid out in the Constitution.
The draft opinion claims that “Even though the Constitution makes no mention of abortion, the Court held that it confers a broad right to obtain one.” The Constitution was written 234 years ago. It also makes no mention of women and was drafted more than 100 years before women could vote, so naturally, it makes no mention of abortion.
Some say this decision is a symbol of a broken and highly-politicized institution. We would argue that the Supreme Court has already been politically broken. The cracks along party lines began to show in 2013 when the court ruled in Shelby County v. Holder that two key provisions in the Voting Rights Act of 1965 were unconstitutional. Specifically, the decision that section five of the Voting Rights Act is unconstitutional consequently led to states having the ability to change their voting procedures without federal review, which opened the opportunity for laws to be enacted that disproportionately restricted minority voting abilities. Including the closure of more than 1,000 polling locations, particularly in predominantly-Black counties, and enabling states to enact strict state Voter ID laws, the decision amplified gerrymandering and spurred political consequences that are still being felt today.
Many Democrats now are pushing to codify abortion, but they don’t have the votes. They don’t even have the votes to remove the filibuster, in order to codify Roe as federal law. They are now using this decision as an item of political strategy, where Democrats are expected to be beaten in the upcoming midterm elections. Polling for both the midterms and the 2024 presidential election today suggests that by 2025, Republicans will have a trifecta win — the majority of the House, control of the Senate, and the White House. This decision is a warning of what could be a possible reality for America. Right now, Republican members of Congress say a nationwide bill to ban abortion is “possible.”
It is important to acknowledge, though, that California will likely be spared from these decisions. Governor Gavin Newsom announced recently that he and other California lawmakers are planning to add reproductive rights, including the right to abortion, to the State Constitution, protecting those rights in the state of California. California Attorney General Rob Bonta recently announced, too, that he would do everything in his power to make sure that a woman’s right to choose is protected in this state. In a press conference last week, he promised to use the “full force of the law,” “no matter what comes out of Washington.”
Four of the five justices who voted to take away abortion rights were appointed by two presidents who didn’t win the popular vote — George W. Bush and Donald Trump — indicating that this draft decision does not reflect the views of the American population. Almost 60% of Americans believe abortion should be legal in all or some cases. Why, then, do we have a court that is threatening to overturn the historic decision that guaranteed reproductive rights? Why are they entertaining this creative thought experiment for a precedent that is a matter of life or death for many Americans?
To be clear, overturning Roe v. Wade will ban safe abortions, not all abortions. “Back-alley/coat hanger” abortions were prevalent before Roe v. Wade, and they will most likely re-emerge and regain popularity if it is overturned. All this decision would do is make abortions more dangerous and risky for the people who seek them. People with uteruses are significantly more at risk for infection, hysterectomies (the surgical removal of the uterus), and death, among other risks, when receiving an unsafe, “back-alley” abortion, when compared to receiving a legal abortion in a licensed medical procedure. In fact, abortions in many cases are safer than at-risk childbirth.
Even if we grant for the sake of the argument that a fetus should be considered a human being, with constitutional protections, from conception, in what world are people ever expected to give up their own bodies for the sake of someone else’s life, outside of pregnancy? We have strict organ donor laws that prohibit the harvesting of healthy organs without the consent of the donor, and no doctor would ever use someone else’s body for nine months to save the life of another without their consent. Yet, that is what pregnant people are demanded to do when refused access to an abortion and forced to carry the pregnacy to term.
This decision suggests that the life of an unborn child is worth more than the person carrying it, and the rationale does not add up. Pregnancy leaves a person’s body permanently changed at the best, and at the worst, it can kill. There are many reasons to seek an abortion, but ultimately there should be no reason to have a reason. It is the pregnant person’s choice what to do with their body, and if they do not want to give it up for someone else’s life, that should be a protected right.
It really feels like we are rapidly approaching a satirical, “The Simpsons”-type reality that the television show would have made a prophetically dystopian episode about 10 years ago. That dystopian future is dawning, and now, it isn’t funny. It’s real. We are beginning to inch closer and closer to the kind of society that Margaret Atwood wrote about in “The Handmaid’s Tale.”
Atwood’s story takes place in the Republic of Gilead, a patriarchal, totalitarian state in which fertile women are enslaved as “handmaids” to bear children for rich couples who are unable to conceive. Gilead, in the story, is New England in the near future, and its government is overrun by conservative terrorists. While novels like Atwood’s may seem unrealistically dystopian, the core questions that they pose— like, “what happens when the government gains control over women’s bodies?”—ask us to interrogate our current predicament.
Starting in 2017, women around the world donned the handmaids’ attire from Atwood’s novel and its TV adaptation to advocate for women’s rights. This came, for example, after the confirmation of Justice Brett Kavanaugh (who is accused of sexual misconduct), to protest anti-abortion laws in Ireland and Argentina, and in support of the Time’s Up movement at the 2018 Golden Globes. These women, draped in red, have begun to reappear across the country since the court’s draft leaked.
We cannot watch our society crumble, watch it revert back to the days when it was ruled by a discriminatory, white supremacist, patriarchal government, and still just go about business as usual.
If the Foghorn obtained the draft of this Supreme Court decision, we would have published it too, no matter the motivations behind the person who leaked it to Politico. There is some controversy over those potential, theoretical motivations — whether whoever leaked felt they had had a moral obligation to the American public, if it was just to enrage and distract people, or if it was to pressure the justices to keep their votes the same so that it does not look like their decision was affected by the press. Transparency is paramount, especially considering decisions that affect the fundamental rights of more than half of the population.
Women have fought for the right to choose for too long just to have it taken away. If they’re going to ban abortion, it would be logical to take the extra step to hold men accountable as well, because they play as much of a role in unwanted pregnancies as women do. What would men being stripped of their reproductive rights look like? Required vasectomies for men who do not want to have children? Does that not sound extreme?
Again, we recognize and appreciate that abortion will most likely remain a protected right in California. However, this decision will disproportionately affect low-income people of color in red states. We need to fight for them. We need to fight for their right to choose, and we need to fight for their safety. This is a backward decision. And we hope it is not finalized.