The shockwaves from the leak of a draft U.S. Supreme Court decision overturning the abortion rights case Roe v. Wade continue to reverberate. But the only real shock is the unprecedented leak of the draft. The political right has been plotting to sabotage women’s rights to privacy and choice for half a century and now they have the five Supreme Court votes to do so.
Experts on the Court offer reminders that Court decisions can change as drafts are rewritten but this one may as well be cast in stone like an Old Testament tablet. The five justices - Samuel Alito, who authored the decision, Clarence Thomas, Brett Kavanaugh, Amy Coney Barrett, and Neil Gorsuch - were expressly chosen to advance anti-democratic causes. In this specific case, a draconian anti-abortion law from Mississippi, the narrow court majority is doing the bidding of a minority that sees “The Handmaid’s Tale” as a how-to book.
The right to abortion has long enjoyed roughly 2-to-1 support among Americans in polls, but majority support isn’t what it used to be in our democracy. Three of the five justices who are expected to vote to overturn Roe v. Wade were appointed by Donald Trump, who lost the popular vote twice.
If the draft holds true, two of the five, Gorsuch and Kavanaugh, lied at their Senate confirmation hearings when they said Roe v. Wade was the established law of the land, lies that may not have fooled anyone beyond naive Republican senators Susan Collins and Lisa Murkowski, who now regret their votes to confirm.
Returning to the draft decision, it didn’t really need an author listed, as in its smug condescension the draft has Alito written all over it. Decades of court decisions upholding Roe v. Wade are sneeringly dismissed, as is the plight of a pregnant raped teenager or a child born into a family that can’t support or doesn’t want him or her.
Alito, however, did find a precedent he admired in the 1250s, when Judge Henry de Bracton, in his summation of English law and custom, declared that if a person “strikes a pregnant woman, or gives her poison, whereby he has caused an abortion, if the foetus be already formed and animated…he has committed homicide.” Bracton also writes admiringly of “the pillory and the ducking-stool,” which will perhaps find favor with Alito in future decisions.
Alito paid lip service to his decision not setting a precedent for reversing other privacy laws, but he can’t be believed any more than Kavanaugh and Gorsuch at their confirmation hearings. Court rulings on birth control, same-sex marriage and other privacy issues will be in the crosshairs of the zealots and theocrats of the far right.
Massachusetts is prominent among states that in recent years have strengthened their abortion rights laws in anticipation of the inevitable demise of Roe v. Wade. Under Governor Kathy Hochul, New York State is scrambling to do the same. These efforts are admirable, but no state can be confident in the security of its abortion rights laws.
There is talk among Republican congressional leaders of passing a nationwide anti-abortion law if Republicans take both houses of Congress in November. So much for Republicans’ empty blather about the primacy of “states’ rights.” The party that rants about “big government” taking away individual rights by employing vaccination and mask mandates in a pandemic has no problem taking away the individual rights of women established for half a century.
The overturning of Roe v. Wade and the threat to individual rights hands Democrats an issue on a platter for the midterms, assuming the party knows what to do with it. A political minority is attempting to drag the nation back to the 1950s - if not the 13th century. That should worry every American, regardless of political persuasion, who values the sanctity of individual rights in a nation that has long prided itself on being a beacon of democracy.
Bill Everhart is the former editorial page editor of The Berkshire Eagle and is an occasional Eagle contributor.
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