WASHINGTON — Abortion foes have spent a half-century trying to overturn Roe v. Wade. And as conservatives wrested control of the Supreme Court, Roe’s defenders have warned with growing urgency that reproductive rights are teetering.
But even if you know an earthquake is coming, it’s still an earthquake.
The leak showing that a five-justice majority is poised to end constitutional protection for abortion rights nationwide unleashed an uproar such as the legal and political worlds have not seen in generations.
“A woman’s right to choose is fundamental, Roe has been the law of the land for almost 50 years, and basic fairness and the stability of our law demand that it not be overturned,” President Joe Biden said Tuesday.
And yet it probably will be, which triggered rejoicing and alarm in roughly equal measure since Politico obtained the explosive draft and published it Monday night.
The shock waves were immediate and immense, touching off a tsunami of crowdsourced dissent along with a deafening chorus of hallelujahs.
Classified national security secrets are more likely to leak than draft Supreme Court opinions. Chief Justice John Roberts, launching an investigation, affirmed the draft is authentic but emphasized that it’s not the final ruling — which was probably the point.
Whether it was a law clerk willing to risk a promising legal career, or some other insider outraged at the direction of the ruling, many speculated that the leaker almost certainly hoped to provoke an uproar that would prod the majority to reconsider, before it’s too late.
“To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed,” Roberts said in a statement issued by the court, calling it “a singular and egregious breach” and “an affront to the Court.”
The fight over abortion rights has animated American politics since 1973, when the high court overturned a Texas ban in a case brought by a Dallas woman known at the time only as Jane Roe.
The left sees impending disaster when — not if — the court upholds Mississippi’s 15-week ban and overturns Roe, which uses a trimester framework to authorize more regulation later in pregnancy.
A 1992 ruling, Planned Parenthood of Southeastern Pennsylvania v. Casey, sharpened that reasoning to protect abortion access through viability, when a fetus can survive outside the womb — roughly 22 weeks.
A ruling that overturns Roe would send the fight over abortion rights to state legislatures. Half the states, including Texas, have “trigger laws” to ban all abortion if Roe falls, or other restrictions they could not currently impose.
For conservatives, the pending reversal validates decades of effort to groom future justices willing to set aside that precedent, and able to survive increasingly partisan confirmation hearings.
The top Democrats in Congress, Senate Majority Leader Chuck Schumer and House Speaker Nancy Pelosi, asserted that some justices now aiming to topple Roe “lied” to senators and have now “defiled both precedent and the Supreme Court’s reputation.”
Maine Sen. Susan Collins, a Republican who supports abortion rights, asserted Tuesday that Trump nominees Neil Gorsuch and Brett Kavanaugh misled her. Before the Kavanaugh vote she said he’d assured her privately that he considered Roe to be “settled law.”
Although the draft emphasizes that the ruling applies only to abortion rights, Roe and Casey stem from a family of rulings in which the court identified implicit but “unenumerated” rights not mentioned in the Constitution. These rulings protect consensual sex between people of the same gender, same-sex marriage, interracial marriage and even access to contraception by married couples.
It’s a momentous pivot with expansive implications.
Pelosi called the draft “monstrous.”
Minority Leader Kevin McCarthy, R-Calif., who’ll likely replace her as speaker if the GOP wins back the House in November as handicappers predict, denounced the leak as an effort “to intimidate and obstruct” the court.
As to what the leak revealed, though, he was pleased.
“There is nothing more special, extraordinary, and worth fighting for than the miracle of life,” he said. “We pray for the resolve of our Justices and for a decision that protects our most basic and precious right, the right to life.”
Whenever the court rules, abortion rights were already sure to dominate the midterm elections.
“These elections will now determine whether cruel new restrictions on abortion will be put in place: whether states will be allowed to criminalize abortion and ban it even in cases of rape or incest,” the Democrats’ campaign committees said in a joint statement.
First draft
Roberts emphasized that the Feb. 10 draft, authored by Justice Samuel Alito, isn’t a final ruling in the Mississippi case, Dobbs v. Jackson Women’s Health. That’s still expected in late June when the court term ends.
Justices horse trade and revise for months on major cases, though they’re not known for flipping sides.
Roberts had not joined the majority aiming to topple Roe. He has shown far more deference to precedent than the other conservatives.
But no doubt they would welcome his support, because a 6-3 ruling has far more legitimacy and staying power than a ruling from a splintered 5-4 court
That’s especially true because it’s so rare to explicitly abandon a major precedent.
In those few instances, the justices have invariably changed course in the name of expanding liberty, not curtailing it — as in Brown v. Board of Education of Topeka, when the court in 1954 scrapped the notorious “separate but equal” doctrine after a half-century.
Alito’s draft does adopt the standard formulation in such pivots, though, denouncing Roe as “egregiously wrong from the start” and not merely in hindsight.
“Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division,” he wrote.
Protests erupt
Protesters descended on the court, some with wire coat hangers, others with signs reading “We’ll never go back,” “Bans off our bodies” and “50 years of stare decisis down the toilet” — a reference to the Latin phrase about respect for precedent.
“This is Republican politicians putting government in charge of your pregnancy,” said Cecile Richards, the former president of Planned Parenthood and daughter of the late Gov. Ann Richards, now co-chair of the Democratic research group American Bridge 21st Century
But Texas Lt. Gov. Dan Patrick called it “a great day for life,” citing estimates that up to 62 million “innocent babies” have been aborted since Roe.
”I am sure the left will fight to allow abortion in Texas. They will not win that fight,” he said.
A few states have enacted new protections in recent months, or expanded access by authorizing nurse practitioners to perform simple procedures or dispense drugs that induce abortion.
In Texas, the “trigger law” that Gov. Greg Abbott signed last June would make it a felony to perform an abortion.
Oklahoma is the most recent state to adopt a law modeled after Texas’ Senate Bill 8, which has vastly curtailed abortion in the state since Sept. 1 by authorizing strangers to sue anyone who helps a woman obtain an abortion after fetal cardiac activity is detected.
That’s about six weeks after the last menstrual cycle begins, and far earlier than most women even realize they may be pregnant.
Federal courts had never allowed a so-called “fetal heartbeat” ban to take effect, and more than a dozen states tried — until the Texas Legislature found a way to confound the courts with SB 8 by outsourcing enforcement to legal vigilantes.
The ruling that let stand Texas’ novel bounty-hunter law left little doubt that the court majority would try to use Dobbs and its 15-week ban as a vehicle to overturn Roe.
Advocacy groups on both sides have raised copious sums from donors either thrilled or appalled at the prospect.
“If this decision holds, it’s really quite a radical decision,” Biden said, recalling that as as senator he opposed Judge Robert Bork’s nomination in 1987 because Bork took issue with Griswold v. Connecticut, a 7-2 ruling in 1965 that recognized the right of married couples to use contraception.
That, like abortion, is not mentioned in the Constitution.
In 2003, also based on the right to privacy, the court in Lawrence v. Texas struck down a ban on sodomy, a ruling that paved the way for recognition of same-sex marriage.
Alito’s draft argues that abortion is unique because it ends a potential life. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” he wrote.
But once the court rejects a right to privacy, Democrats warned, the door is open.
“As drafted, Justice Alito’s argument — that women are not entitled to basic human rights today because they have been denied those rights for generations — is alarming and extremist,” said Pelosi, and it “offers a dangerous blueprint for future assaults on some of our most cherished rights.”
Fetal ‘heartbeat’
SB 8 has greatly reduced abortion access in Texas. As surrounding states make access harder, the situation is becoming dire for women facing an unwanted pregnancy.
Biden directed his Gender Policy Council and the White House Counsel’s Office to prepare options in case the Supreme Court overturned Roe. Any ideas they’ve come up with remain under wraps but, Biden said Tuesday, “We will be ready when any ruling is issued.”
In September, after Texas enacted SB 8, the U.S. House voted to codify Roe by approving the Women’s Health Protection Act.
But Democrats have only a tenuous grip on the House. The vote was 218-211 and midterm elections are almost always punishing for the party in power.
The bill stalled in the 50-50 Senate, where it takes 60 votes to overcome a filibuster.
The Biden administration forcefully defended Roe before the court in December on the basis that the 14th Amendment protects personal liberty “against government interference with intensely personal decisions.”
Sen. Patrick Leahy, a Vermont Democrat who, like Biden, has chaired the Senate Judiciary Committee and presided over confirmation hearings of future justices who professed fealty to precedent, said the “ungrounded judicial activism” of a ruling that overturns Roe “threatens to propel us toward the politicization of our independent judiciary.”
The court would inflict on itself “irreparable damage to whatever remaining trust Americans have in our judiciary as an independent, apolitical branch of our government” even as it strips away “a bedrock constitutional right that has granted women autonomy over their bodies and health for nearly five decades.”
But at the Pro-Life Action League, executive director Eric Scheidler called this legal pivot an opportunity for a “radical transformation” of laws and health care benefits, to ensure that women don’t feel a need to resort to abortion.
“Our entire country has been held hostage by Roe v. Wade, which has poisoned our federal politics for nearly 50 years,” he said. “After nearly 50 years and the violent deaths of over 60 million innocent unborn children, America is finally emerging from the abortion nightmare.”
