Washington DC—On Monday night an unprecedented leak of a pre-decisional opinion showed the conservative-heavy Supreme Court is poised to overturn the historic Roe v. Wade and Planned Parenthood v. Casey rulings which protected a woman’s liberty to decide whether or not to have an abortion. The premature release of the draft opinion immediately triggered an onslaught of reactions outside the white marbled Supreme Court building as thousands rallied in opposition to the impending official ruling. There was, however, little they could do politically in the near term to change the expected outcome. What was not yet known was how this decision would play out in the results of the midterm November elections later this year.
The high Court’s ruling—although not yet officially released—is certain to further polarize viewpoints while galvanizing women’s healthcare rights advocates to provide work-around solutions for those seeking abortions. It will also spur renunciation of right-wing discourse over women’s rights and erode conservative support at the mid-term poles this November when the decision’s impacts will have become more clear.
A vast majority of Americans—over 70%—support a woman’s right to decide their own healthcare options and plan their own families, according to a Pew Research poll conducted this year.
Emotions Run High Outside Supreme Court
Outside the Supreme Court police cordoned off the burgeoning crowd as speakers decried the unprecedented early text release which was confirmed authentic by Chief Justice Roberts earlier in the day.
Speakers included Senator Elizabeth Warren and House Representative Alexandria Ocasio-Cortez who both excoriated the contents of Justice Alito’s text. Several other speakers urged supporters to donate to local collectives providing services for those needing healthcare but not able to pay for it.
Later a dozen forced-birth activists showed up to heckle the crowd but were out-shouted and surrounded by hundreds of women’s healthcare rights advocates. The crowd confronted the hecklers who refused to leave although they had an exit on the Supreme Court grounds. A clash ensued and police arrested one of the hecklers before escorting the rest of them away. It was not clear what charges he faced.
The backlash against overturning the William E. Burger Court ruling on Roe v. Wade in 1973 has been building for decades as attempt after attempt by conservatives to overturn it had failed. But attempts to whittle away at and overturn the 50-year old Roe v. Wade law gained traction over the last four years by the confirmation the three consecutive controversial right-wing jurists. They were pushed through the confirmation process by very slim margins in a deeply split partisan Congress following acrimonious hearings. These confirmations occurred during the Presidency of Donald Trump, an administration that lost the 2016 election popular vote by 2.7 million votes; and a president with the historically lowest approval rating of any President ever.
Next came the inevitable political maneuvering to vet the conservative Jurists. First was the forced delay of President Barrack Obama’s first nomination of Merrick Garland to the Court by then Senate Majority Leader Mitch McConnell, who premised that a SCOTUS nomination 11-months out from an election should be delayed until after the election was done. McConnell then rejected his own premise at the end the Trump Administration and weeks from the Inauguration, by rushing the confirmation hearings of Amy Barrett. As a result, the Court has lost the luster as an unbiased mitigator of constitutional law. Some of those calling its legitimacy into question include key Democratic leadership.
All of the last three conservative Jurists appointed— Gorsuch, Kavanaugh, and Barrett, testified in their opinion Row V. Wade was “settled law” during confirmation hearings before the Senate Judiciary Committee. The impending decision to overturn the “settled law” was met by Democratic leadership with bitter criticism that these three Jurists lied to Congress during their confirmation hearings.
But the Court faces other potential sources of backlash as key elements of Alito’s justification to overturn the Roe and Casey rulings can easily be tailored to remove LGBTQ and Marriage liberties the Court has already enshrined.
Historic Roe v. Wade Ruling Was Not Absolute
When the William E. Burger Court ruled in 1973 to overturn the Texas District Court ruling in Jane Roe v. Henry Wade, the Court pointed out that the right to abortion was ‘not absolute’ and had to be weighed against the government’s interest in protecting a woman’s health and protecting prenatal life. This wording left the door slightly open to disturb the present Supreme Court decision in Roe v. Wade.
The 14th Amendment provided a fundamental right to privacy and the Court held that the Texas law violated this right. The 1973 William Burger Court held:
“The due process clause of the Fourteenth Amendment to the U.S. Constitution provides a fundamental “right to privacy” that protects a pregnant woman’s liberty to choose whether to have an abortion. This right is not absolute, and must be balanced against the government’s interests in protecting women’s health and protecting prenatal life. The Texas law making it a crime to procure an abortion violated this right.”
On Tuesday, President Joe Biden vowed to prepare options in response on Monday to the pre-release of the Court’s decision. But any option to affect Federal law will have to pass through Congress and so far that body has refused to take down its own rule, the filibuster.
Biden’s press release reads,
“I believe that a woman’s right to choose is fundamental, Roe has been the law of the land for almost fifty years, and basic fairness and the stability of our law demand that it not be overturned.
Second, shortly after the enactment of Texas law SB 8 and other laws restricting women’s reproductive rights, I directed my Gender Policy Council and White House Counsel’s Office to prepare options for an Administration response to the continued attack on abortion and reproductive rights, under a variety of possible outcomes in the cases pending before the Supreme Court. We will be ready when any ruling is issued.“
On Tuesday, Chief Justice John Roberts confirmed the pre-decisional opinion was in fact an authentic text and promised to initiate a probe to determine the parties responsible for its release to Politico. But rights groups were quick to counter that the real issue is the overturn of Roe v. Wade.
Investigations into releases of government information are usually handled by the FBI.
Contents of The Pre-decisional Opinion
An cursory review of the contents of the pre-decisional opinion has shown that Justice Alito’s majority opinion is a disturbing read at best. He referred to Roe as “not deeply rooted” in American history, opening the door for the Court to also throw out recent rulings in rights for LGBTQ access to Federal , same-sex marriage, interracial marriage, and civil rights in general. Alito also quoted Sir Matthew Hale, an English jurist from the early 1600s, in support of his opinion. Hale supported marital rape and had several women executed for witchcraft.
Video short of woman’s healthcare rights advocates:
We will update this story as more developments are learned.
