Leaking Alito’s draft overturning Roe v. Wade

Letters from an American May 4, 2022
, Prof. Heather Cox Richardson

Overturning Roe v. Wade

The uproar over the leaked draft of the Supreme Court decision overturning Roe v. Wade continues. You can tell just how furious the reaction has been by the fact that establishment Republicans are desperately trying to turn the public conversation to the question of who leaked the document. They are baselessly blaming the opposition to the decision—a Newsmax host blamed Judge Ketanji Brown Jackson, who hasn’t even taken her seat yet—for the leak, although observers point out that the leak seems more likely to have come from a hard-core right-wing antiabortion activist, since it will make it very hard for any of those justices currently in the majority to soften their stance.

The draft decision takes a sweepingly broad position against Roe v. Wade, declaring that the Fourteenth Amendment cannot protect the right to abortion because such a right is not “deeply rooted in this Nation’s history and tradition.” This opens the door to similar attacks on constitutional rights previously established by the Supreme Court: the right to use birth control, marry regardless of race and gender lines, and engage in sexual intimacy between consenting adults.

Republican lawmakers are downplaying the reach of the apparent decision, avoiding the question of whether gay rights are next on the chopping block. Bryan Metzger of Business Insider asked “nearly a dozen” Republican senators whether they think the draft decision overturning Roe v. Wade threatens the 2015 Obergefell v. Hodges decision recognizing the right to same-sex marriage, and whether they supported overturning the Obergefell decision. Metzger wrote: “None gave a clear yes or no answer, and several outright declined to comment.” A year ago, seventy percent of Americans supported gay marriage.

The popularity of civil rights might not matter much: law professors Melissa Murray and Leah Litman noted in the Washington Post that “[p]erhaps the most stunning feature of the opinion is that its indignant tone and aggressive reasoning make clear how empowered this conservative majority believes itself to be.”

Indeed, right-wing commentators are emboldened by the apparent success of their drive to take away the constitutional right to abortion. The Committee on Administration of Criminal Justice in the Louisiana legislature today reported favorably on a fetal personhood bill that protects “human life, created in the image of God…equally…from fertilization to natural death,” meaning that abortion is homicide and prosecutors can charge patients with murder.

Right-wing commentators today called for the court to end recognition of the right to gay marriage, and Texas governor Greg Abbott said that Texas might challenge the 1982 Plyler v. Doe decision, in which the Supreme Court ruled that the state could not withhold state funds to educate undocumented immigrant children from local school districts. “I think we will resurrect that case and challenge this issue again,” Abbott told a talk show host, “because the expenses are extraordinary and the times are different than when Plyler versus Doe was issued many decades ago.”

The draft decision has been a clarifying moment for the country. Washington Post columnist Jennifer Rubin told journalists to stop referring to the convulsions in the country today as “culture wars,” as if they were “a battle between two sides over hemlines or movie ratings.” Instead, she wrote, “This is religious tyranny…in which the right seeks to break through all restraints on government power in an effort to establish a society that aligns with a minority view of America as a White, Christian country.”

When reporters asked him about the draft, President Joe Biden said: “This MAGA crowd is really the most extreme political organization that’s existed in American history.”

Today documents from the Department of Justice revealed that on the evening of January 6th, after the rioters had left the Capitol, Stewart Rhodes, the leader of the right-wing Oath Keepers militia group, begged an individual who was in contact with then-president Trump to authorize his and similar groups to stop the transfer of power with force. The group had quick reaction force (QRF) teams, firearms, and combat gear stashed outside the city to use if called upon.

The individual refused to put Rhodes into direct contact with Trump, but the person appears to have been within the president’s inner circle, bringing the investigation closer to Trump. That night, court documents recorded, “Rhodes continued to discuss the need to prepare for a larger fight against the government akin to the American Revolutionary War.” (There seem to be an awful lot of references to 1776 around January 6, don’t there?)

Yet another leaked tape from House minority leader Kevin McCarthy (R-CA), in which he said that “what the president did is atrocious and totally wrong,” showed that immediately after the insurrection, even Republicans realized that Trump had gone too far, and their hope was simply to move him offstage and get people to focus on moving forward. The party quickly snapped back to his side, though, when it became clear that his base wouldn’t abandon him.

”One of the most stunning and sad things in my view that has happened since January 6 has been the realization that the vast majority of…my party, when the chips were down and the time of testing came, they didn’t do the right thing,” Representative Liz Cheney (R-WY), one of the two Republicans to sit on the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol, said today.

The events of January 6 did not prompt many leading supporters to break from the Republican Party, but this attempt to erase our rights and establish a state religion might spark a political realignment.

This moment seems to echo the days after the 1857 Dred Scott v Sandford decision took away voters’ ability to stop the spread of human enslavement. Like the draft decision we have seen this week, that decision was clearly political and drew on appallingly bad history to reach a conclusion that gave extraordinary power to the country’s wealthiest men. Horace Greeley, the prominent editor of the New York Daily Tribune, wrote that the Dred Scott decision was “entitled to just so much moral weight as would be the judgment of a majority of those congregated in any Washington bar-room.”

Three months later, the Illinois Republican Party nominated Abraham Lincoln for senator. With his acceptance speech, he began the process of reclaiming equality as the central principle of the United States by giving his famous House Divided speech in which he warned that there was a plan afoot to spread enslavement across the entire country.

In the present, not only are the streets full of protesters, but also the three Republican governors in New England—Charlie Baker (MA), Chris Sununu (NH), and Phil Scott (VT)-—have all said they will protect abortion rights in their states. Levi Strauss & Company, the clothing manufacturer, today called on business leaders to protect the health and well-being of their employees, defending the reproductive rights that have enabled women to participate more fully in the economy in the past 50 years.

The world has changed since the Supreme Court decided Roe v. Wade in 1973. Levi Strauss noted that today, 58% of its workforce is female. And as Rebecca Solnit pointed out in The Guardian, the various groups now under attack form a broad coalition. “It doesn’t really matter if they’re coming for you, because they’re coming for us,” she wrote. And “[u]s these days means pretty much everyone who’s not a straight white Christian man with rightwing politics.”

Justice Samuel Alito, the author of the draft opinion, has canceled a public appearance tomorrow. And tonight, according to Washington, D.C., journalist Lindsay Watts, security officials have begun to install non-scalable fencing around the Supreme Court.

“May 4, 2022 – by Heather Cox Richardson (substack.com)