Abbreviated pundit roundup: Analysis of leaked draft of opinion overturning Roe v. Wade
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POLITICO has obtained a draft Supreme Court opinion overturning Roe v. Wade, an opinion which if released as is, would allow state abortion bans to immediately take effect across many states. We begin with an analysis from Daniel Victor at The New York Times, which is running live updates on the developments:
A leaked draft opinion indicating the Supreme Court has voted to overturn Roe v. Wade, the landmark decision that guaranteed abortion access, sent immediate shock waves throughout the United States, as many Americans braced for a future without reproductive rights that had been established for nearly a half-century.
The draft opinion, written by Justice Samuel A. Alito Jr., was obtained by Politico Monday night in an unprecedented leak from the nation’s highest court, elevating a cultural issue that has long carried heavy emotional and personal weight to the forefront of American’s minds. The decision, which is not expected to be finalized for another month or more and could change in its final form, would shift the decision of abortion’s legality to individual states.
Claire Cain Miller and Margot Sanger-Katz at The New York Times run through the fallout:
According to the Center for Reproductive Rights, a group that fights abortion restrictions in court and closely tracks state laws, 24 states are likely to ban abortion if they are allowed. Those states are: Alabama, Arizona, Arkansas, Georgia, Idaho, Indiana, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia and Wisconsin.
The Guttmacher Institute, a research group focused on reproductive health care, says a slightly different group of states is likely to substantially limit abortion access: Its list of 26 states excludes North Carolina and Pennsylvania, but includes Florida, Iowa, Montana and Wyoming.
Thirteen states have so-called trigger laws, which were passed to make abortion illegal as soon as the court allowed it. Some have old abortion laws on the books that were invalidated by the Roe decision but could be enforced again. Still other states, like Oklahoma, have abortion bans that were passed during this legislative session, despite the Roe precedent.
And terrifyingly, anti-choice activists don’t see the potential overturning of Roe as their endgame…even if Roe is overturned, they will continue to restrict abortion access in state legislatures across the country:
Leading antiabortion groups and their allies in Congress have been meeting behind the scenes to plan a national strategy that would kick in if the Supreme Court rolls back abortion rights this summer, including a push for a strict nationwide ban on the procedure if Republicans retake power in Washington.
[…]
While a number of states have recently approved laws to ban abortion after 15 weeks of pregnancy — the limit established in the Mississippi legislation at the heart of the case pending before the high court — some activists and Republican lawmakers now say those laws are not ambitious enough for the next phase of the antiabortion movement. Instead, they now see the six-week limit — which they call “heartbeat” legislation — as the preferred strategy because it would prevent far more abortions.
Elie Mystal at The Nation:
Indeed, people should have expected exactly this outcome from the moment Donald Trump won the 2016 presidential election. Specifically, the 52 percent of white women who voted for Trump, along with the 52 percent of all men and a whopping 62 percent of white men, should have expected this. Some of them clearly wanted abortion to be overturned. But 59 percent of Americans believe abortion should be legal in most cases, including 57 percent of white Americans—so some of them clearly didn’t want it.
Did they think these conservative theocrats were joking? Conservatives have long promised to take away women’s rights. Now they are doing it. What did anyone think was going to happen when we let them control the Supreme Court? There won’t be a riot, because most people have accepted living with a Christian fundamentalist Supreme Court. The fight to save abortion rights was lost slowly, over a long time, and then all at once.
Professors Rachel Rebouché and Mary Ziegler at The Atlantic wrote about a post-Roe future last month:
[I]f the Supreme Court clearly repudiates Roe, we may see a backlash that galvanizes people who haven’t typically taken a side in the abortion debate, including many who accept restrictions on abortion but not outright bans. This is unlikely to happen across the country, but it could make a key difference in a handful of states. Hints of such political mobilization are already apparent in places such as Virginia, which has historically restricted abortion but now has repealed some of those regulations following public outcry.
And, in case you’re wondering about the precedent the draft opinion would set for other rights:
In his draft, Alito doesn’t preclude a federal abortion ban, but “if we move away from abortion to other privacy-based rights such as contraception, rights like gay marriage, he does try to ring-fence this opinion and say all we’re talking about is abortion — he mentions that several times,” Gerstein noted. “That said, I’m old enough to know that the court many times has said, ‘Don’t try to apply our opinion on X to this situation Y,because it’s different,’ and yet it often does get applied that way.”
And a final note from Eleanor Clift at The Daily Beast on Republican Senator Susan Collins, who promised America that Brett Kavanaugh would defend Roe:
The one person most responsible for the looming loss of abortion rights—aside from the president who appointed three anti-Roe justices—is Maine Republican Sen. Susan Collins, who in October of 2018 became the 50th and deciding vote in the Senate for Brett Kavanaugh. […]
Collins won a fifth term in the Senate in 2020, and her re-election wasn’t even a close call. She was too eager to believe all that fluff about stare decisis, and now a constitutional right that has been in place for 50 years is about to be shattered on the wing of a promise to her that predictably turned out to be a lie.
Susan Collins told the women of America that they could trust her to protect their reproductive freedom. She let us down.