Monday night, Politico published a leaked draft opinion from the Supreme Court showing that its conservative majority is about to overturn landmark abortion decision Roe v. Wade. Chief Justice John Roberts confirmed the authenticity of the document Tuesday. While draft opinions might not reflect the court’s final decision, the unprecedented leak has set off alarm bells for abortion rights supporters. WAMC spoke with Massachusetts U.S. Senator Ed Markey Tuesday about how Democrats plan to respond.
MARKEY: We got a sneak preview of what a stolen, illegitimate, far right Supreme Court majority appears poised to do: Dismantle abortion rights in the United States. And already in red states across the country, access to abortion is functionally denied because of financial, geographic, immigration status, and other barriers. This war on communities of color and the poor is already being waged. We can't let the Supreme Court provide deadlier weapons to harm women in our country.
WAMC: So what's the next step? What's the recourse for the Democrats?
Well, I ask that there be a full recognition of what the Republicans have done. The Republicans stole two Supreme Court seats with the goal of ultimately repealing Roe vs. Wade. That day has now arrived. It's an illegitimate Supreme Court. My bill would increase the number of justices by four, up to thirteen from nine, in order to overturn these decisions that are going to be rendered by an illegitimate court. It's the only remedy that we have. And the Supreme Court has been expanded historically by Congress, and we can do it again. But it's the only corrective that is available if the Supreme Court moves forward and repeals Roe vs. Wade.
Now, how does the filibuster play into this? Is it going to be possible to accomplish that without a supermajority?
Well, we have to abolish the filibuster then pass the codification of Roe vs. Wade if we are going to be successful. And those are going to be two huge battles that have to be waged, but it's unavoidable. Because otherwise, by this summer, women all across the country are going to lose their ability to have access to the health care they need if they choose to have an abortion.
I want to look back on a previous era of Democratic dominance in Washington. During Barack Obama's first term back in 2009, there was a lot of control over the House and the Senate and the White House from the Democrats. And in retrospect, it seems like that was an opportunity to maybe sign the Freedom of Choice Act, and it didn't happen then. And there's a quote from The New York Times in 2009, where Obama said the bill is, quote, “not my highest legislative priority.” Looking back on that moment, do you have any regrets about your party's decision making at that time?
From my perspective, we worked very hard. We barely got the Affordable Care Act passed. We could not pass a climate bill. So it was not an easy political environment to get anything done. President Obama prioritized ensuring that every person in America have access to health care. But unfortunately, that then dissipated a lot of the political capital which he had. I'm sure if he had an unlimited amount of political capital to spend, he would have spent it on Roe vs. Wade, on climate change, and on other issues that are critical for our country.
What's the atmosphere like in DC today? I know you've been out and about in the streets- What's the environment like?
There is an energy around the Supreme Court that I haven't seen in a generation. It's especially young women who are up and activated amongst the Democrats in the Senate. There was an energy level in the meeting that we had that is at the highest level. Roe vs. Wade is about to become the top political issue of 2022 in the United States of America, and I think that the Republicans have sowed the wind, but they're going to reap the whirlwind of a political blowback that's going to come from women all across our country.
Some experts who have examined the decision as written by Justice Alito have pointed out that it also theoretically lays the groundwork for other reversals of other civil rights in America, including but not limited to gay marriage and other issues much discussed in the country. Do you have any concern that other issues are next on the chopping block after Roe v. Wade?
Yes. If the extremist right wing court is willing to abandon something as fundamental as the right to privacy, the right to choose, then we're on a slippery slope to undoing other fundamental rights the Court has recognized as grounded in the right to privacy, including the right to use contraception, or the right to marry whoever you want. All of that is now potentially on the chopping block, because the Supreme Court is walking away from a right to privacy, which every American is entitled to.
Do you have a message for folks in the country who are now concerned that their rights are in question and their livelihood and their wellbeing could soon follow?
I would say they should be worried, very worried, because what is legal today could become illegal within the next month. And that's not just the right to abortion. But then once they've completed with that agenda, this illegitimate Republican Supreme Court will move on to other issues which everyone has taken for granted for at least two generations. We're in a whole new world that the Republican right wing has created in our country, but it's going to absolutely strike fear in the hearts of women, of the LGBTQ community, of families that depend upon access to contraception, that all of those rights may be about to be taken away. So elections matter. November matters. Anyone who cares about their right to privacy, their right to health care, their right to an abortion or contraception, or as an LGBTQ individual to their own advancement and full entitlement of all the protections of the United States Constitution. They should be very concerned, and for the next eight months get reactivated to make sure that we put a stop to this unconstitutional infringement upon the rights of privacy of all Americans.
Your colleague across the aisle, Mitch McConnell, has drawn attention to the historic nature of the leak that's led to this media circus today. Any thoughts on Mr. McConnell's focus on the leak aspect of the story?
Well, when the rights of millions of Americans are on the line, the fact that this document was leaked is far from my gravest concern. It's absurd that that's how Republicans are attempting to shift the narrative today. It just won't work. What we learned was too important. We've learned that the actual substance of this decision is going to harm millions of women across our country. I'm more concerned that the two stolen seats on the Supreme Court are leading to a compromise of a woman's right to choose. I'm more concerned that the two stolen seats on the Supreme Court are much more important than a stolen draft of a decision that will undermine women's health care protections in our country.
