In scathing, dismissive language, Supreme Court Justice Samuel A. Alito Jr. wrote a draft opinion that does what for many decades seemed unimaginable — it overturns the 1973 ruling in Roe v. Wade and annihilates the constitutionally protected right of a woman to control her own body. If the leaked draft, which was written in February and confirmed as authentic by Chief Justice John G. Roberts, Jr., becomes the court’s final decision, it will set reproductive freedom back generations. About half the states either have or will pass bans or will severely restrict abortion, with the burden falling on women who can’t afford to travel to an out-of-state abortion clinic.
Striking down Roe will undo a nearly 50-year precedent. Generally, the court overturns a decision in order to restore or grant rights. This would be the rare Supreme Court ruling that revokes a person’s fundamental rights.
Sadly, this was not a surprise. It seemed clear from the oral arguments in December in Dobbs v. Jackson Women’s Health Organization — the case involving Mississippi’s ban on abortions after 15 weeks of pregnancy — that the court’s conservative justices were looking for ways to uphold that ban and scale back abortion rights.
Alito in the draft opinion wrote that “Roe was egregiously wrong from the start” as well as weak and not settled. His opinion would wipe out a constitutionally guaranteed right to abortion altogether, arguing that because abortion is not explicitly mentioned in the Constitution, it must at least be a right that is grounded in the nation’s history and concepts of liberty before it can be worthy of constitutional protection. But, he writes, abortion was mostly criminalized throughout American history. It’s absurd that abortion rights can’t be protected today because male lawmakers criminalized it in the past.
“He freezes our constitutional rights today at what that small group of people thought the world was back then,” says Jennifer Dalven, director of the ACLU’s Reproductive Freedom Project. “That should be frightening for all of us.”
Nor should anyone trust that the court will just stop at abortion rights. The idea that a right must be grounded in history before it is constitutionally protected could jeopardize “a whole host of rights — from the right to use contraception to the right to have a relationship with the person of a same sex,” Dalven says.
Voters need to fix this. Overturning Roe would put abortion laws in the hands of state and federal lawmakers. State lawmakers, who were happily passing restrictions that flouted Roe, will surely try to mow down whatever remaining abortion protections exist in their states after Roe is gone unless voters stop them.
California has protected reproductive rights under state law. In fact, Senate President Pro Tem Toni Atkins, D-San Diego, and Assembly Speaker Anthony Rendon, D-Lakewood, said Tuesday they are committed to getting a constitutional amendment on the November ballot that specifically protects the right to abortion here.
That’s great. But it’s not enough.
The Women’s Health Protection Act, a congressional bill that would ensure the right to a legal abortion nationwide, passed the House but not the Senate. Polls show a majority of Americans support a woman’s right to an abortion. Those representatives need to know that people who believe in abortion rights want that bill passed and will vote them out of office if they don’t protect abortion rights. On the flip side of that, emboldened conservative politicians may try to pass a national ban on abortion in a couple of years. Let legislators know it’s a deal breaker if they do that.
The decision to become a parent is fundamentally a question of personal freedom. But it’s also an economic decision. And it’s appalling that a nation that does so little to support children and families is on the cusp of taking away the right for people to decide if they have the means to raise a family.
Alito got one thing right in his draft when he wrote that “women are not without electoral or political power” when it comes to abortion laws, though that’s not a good reason for getting rid of a constitutionally protected right. It’s time for them to use it to stand up to the elected officials who support curtailing their constitutional rights. It’s time for everyone who cares about individual rights to see this draft ruling as a call to action.
