In an unprecedented breach of Supreme Court norms, a draft majority opinion was leaked to the media this week, several months ahead of an official ruling that abortion advocates fear could overturn Roe v. Wade. While some want to know how something like this could happen, most Americans have gravitated to the content of the draft, written by Associate Justice Samuel Alito, a longtime and vocal opponent of abortion, who writes, “Roe was egregiously wrong from the start,” and “that Roe and Casey must be overruled.”
Roe v. Wade represents the landmark case in which the U.S. Supreme Court ruled on Jan. 22, 1973, in a 7-2 decision, that unduly restrictive state regulation of abortion is unconstitutional. In reference to a set of Texas statutes that then criminalized abortion, the Court determined that those statutes more often violated a woman’s constitutional right of privacy – implicit in the liberty guarantee of the due process clause of the Fourteenth Amendment.
Undoubtedly, there are those on our editorial staff who lean on both sides of the abortion argument. That said, we remain highly troubled by the fact that should the draft opinion, or one similar to it, become law, abortion would either immediately or very quickly become inaccessible in at least 22 states. These states already have near-total bans or very early-term bans on the books. What happens to the women in those states who seek an abortion – some who cannot afford another child, or are too young to care for a child or who may have become pregnant forcibly? Do they matter?
Many among the more conservative faction of America’s legal elites have dreamed about banning abortions for the past 20 or 30 years. But now that the Court has a 6-3 supermajority of conservative-minded justices, most of whom have vocally admitted their opposition to abortion, it looks like our nation may soon undergo a paradigm shift that few could have imagined.
In terms of the draft opinion, we wonder if Alito’s personal opinions had a greater impact than his actual interpretation of the law. After all, he bases it on a familiar and traditional conservative argument that asserts that by overruling Roe, the Court opens the door for the promotion of democracy with each state being allowed to decide how it will regulate abortion.
But what if a state has a majority of legislators who want to impose harsh regulations? Then what? Will women in that state be forced to return to the days of back-alley abortions and hangers?
Finally, while Alito asserts that promoting democracy remains why he believes the states should be the final arbiter in laws governing abortion, he hasn’t been so concerned about democracy in other contexts.
In two decisions that he penned, Alito obliterated several key provisions of the Voting Rights Act. He also supported a decision that directed federal courts to allow clearly partisan gerrymandering actions. Perhaps he supports “democracy” when the issue at hand reflects his personal convictions.
America stands at the crossroads. But while the debate continues, and the Court prepares to make its ruling, we have only one thing to say: women should have the right to decide what happens to their bodies – no one else. That’s what democracy is all about.