Abortion and the Alito Draft: What is Coming
Abortion and the Alito Draft: What is Coming
According to an initial draft majority opinion written by Justice Samuel Alito, that has been circulated among the Justices and leaked to POLITICO, the Supreme Court is preparing to strike down the landmark Roe v. Wade decision.
The draft opinion, which POLITICO calls “a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights,” appears to be a complete ruling that could be meant for formal publication in just a few months. “Roe was egregiously wrong from the start,” Alito writes, “We hold that Roe and Casey must be overruled.”
Alito issues the resounding death knell against firmly established reproductive rights in the following sentence that shows the Conservative Majority of the Court no longer cares to follow hundreds of years of established legal tradition or Constitutional precedent: “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
While it might be easy to get lost in the sheer panic of the idea that a Supreme Court, stacked by Donald Trump, is now firmly in control of the bodily autonomy of females in the United States, now is the time to focus on three things: why would this draft leak now; what new law would be instantly established by a ruling of this kind; and what will the future look like for women and girls who need safe and legal abortions.
While leaks happen often in Washington, DC, especially for issues involving Congressional or Presidential actions, they are an extremely rare occurrence for the United States Supreme Court. There have been occasional leaks and rumors about the internal workings of the Court, and a few decisions have even been made public before the official ruling has been handed down, but never before has an entire draft opinion been released like this.
The question we need to be asking ourselves first is why would this entire draft has leaked at this point? Leaks of this nature, at the Supreme Court level, simply do not happen. This means that we have to question the fact of the leak itself and ask ourselves who stands to benefit from this ruling getting a “public preview.”
It is possible that the issue of abortion and the threat of overturning Roe v. Wade is such a serious shift in jurisprudence at the highest level, that this might have caused someone who works at the Supreme Court to break a tradition that is rarely broken and leak the document. It is also possible that this draft was intended to be leaked as a signal to other Conservative leaders at the state level to initiate their own restrictive bills, if they haven’t already.
Both Democrat and Republican lawmakers stand to benefit from a leak of this kind, so discerning the nature of the leak is not necessarily dispositive. A leak, coming directly from a Conservative Justice, such as Alito himself, could benefit the GOP to give them a heads-up and move forward with more stringent state-wide abortion restrictions.
A leak from the Justices intending to overturn Roe, or from any agents acting on their behalf, would also mean that this Court is not an independent bastion of legal autonomy, free from political influence. If the leak came from the majority of the Court, the judicial branch of the US government, meant to stand as an impartial arbiter for justice, is dead.
If the leak came from someone at the Court, with access to the draft document who is concerned about the impending disaster of its publication, it might have been done to warn the public and signal that this decision is being considered or will actually be the final ruling.
While the Supreme Court is intended to exist in its own bubble of jurisprudence, and not be swayed by public opinion or political pressure, an overwhelming response against this ruling from the public might still have some sway. However, given the way in which several of Trump’s nominees obtained their lifetime appointments, I have little faith that any level of public outrage over the proposition of overturning Roe v. Wade will matter at this point.
Let’s turn our attention to what the immediate fallout would be pending the release of a ruling of this kind. We know that if this Alito draft is made into law, it will have the support of five sitting Justices — Alito, Thomas, Gorsuch, Kavanaugh, and Coney-Barret — and this will give them the slim majority necessary to overturn fifty years of established precedent. It is not really necessary to delve too deeply into what Chief Justice Roberts might do, because the majority already has the votes they need.
If this opinion becomes the law of the land, it will not likely happen for another few months, when the decision is formally released. If the final ruling reflects the current draft we are reviewing now, the immediate effect would be to end a half-century guarantee of federal constitutional protection of abortion rights and allow each state to decide whether to allow, restrict or ban abortion.
At this point, we have no way to tell if there have been subsequent changes to the draft or if future changes will be made that might alter certain aspects of the ruling. The draft document, labeled as a first draft of the majority opinion, includes a notation that it was circulated among the justices on Feb. 10, so it is possible that the draft has evolved from that initial timeframe.
If this Alito draft forms the basis of the future majority opinion, and abortion rights are left to each state to determine individually, an immediate consequence will be that the Mississippi law that bans most abortions after 15 weeks of pregnancy will be allowed to stand. Any future challenges to abortion bans, such as Texas’ 6-week ban on the procedure, would also likely be legal following this new ruling. Each state will be legally allowed to establish abortion restrictions, and this might include the punishment of patients and doctors who take part in the abortion procedure once they are outlawed within a state.
The future path for Conservative lawmakers will likely include an attempt to ban abortion at the national level. While this strategy might appear to move past the specifications in the Alito draft ruling, which denotes that each state would make the law, Alito makes a point to say “It is time to…return the issue of abortion to the people’s elected representatives.” Given the extreme nature of this draft, it is not a far reach to say that in the future, this Supreme Court could find that “nationally elected representatives” serve the purpose of the people in the same way and that a national ban on abortion, as specified by a Republican majority, could be legal.
While this dystopian proposition is certainly nightmarish, especially while we are forced to wait for the impending fallout, there are certain benefits that Democrats must take advantage of immediately. If Roe v. Wade is overturned within the next few months, it will only help to fuel the re-election of Democrats, who oppose these restrictions, in the next Midterm election.
If this does become law, it will only help to re-elect a Democrat as President in 2024. Whether the outrage will translate to astounding voter turnout for Democrats or whether the majority will still be maintained with only a slim lead, is yet to be seen. Gallup Polls showed Americans’ support for abortion in all or most cases was at 80% in May 2021, and the Pew Research Center found that six-in-ten Americans say abortion should be legal in all or most cases, so the key to protecting a woman’s right to choose will be found solely within Congress and the officials we vote to elect.
While some states are already forcing their draconian laws on women, and the Alito draft would only re-enforce the state’s right to do so, the fight to curtail a law like this at the national level would be the biggest fight we would face. The 2022 Midterm election just became a referendum on the future of democracy for women in America.
Amee Vanderpool writes the SHERO Newsletter and hosts the live SHERO podcast on Callin. She is an attorney, published author, contributor to newspapers and magazines, and analyst for BBC radio. She can be reached at avanderpool@gmail.com or follow her on Twitter @girlsreallyrule.
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Sadly, it's not a given that Americans would feel enough urgency about the current threats to democracy to turn out in droves for the Democrats this November, no matter what the January 6 committee hearings reveal this summer. But ending abortion and, as the Alito draft implies, contraception and marriage equality... those are issues that have immediacy and that people do understand. So while the leak of the draft opinion is a stunner, it does give us an extra two months to mobilize and organize for the midterms. Can't imagine that Republican campaign operatives across the country are happy about this. Let's get going!
The train wreck that is America continues to roll on. I wish I could say this is a surprise but we've known for 20 years this ruling was coming and the GOP played a masterclass long game to rig the judiciary. This ruling has been their intent since the Federalist Society was founded in 1982. And here we are. Democrats still don't know what to do other than be mad. Biden came into office saying he would look to fix the court - he hasn't and won't. Until Democrats start playing the same game the GOP is playing then this will only worsen.