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Offering commentary and analysis from Washington, Oregon, and Idaho, The Cascadia Advocate is the Northwest Progressive Institute's uplifting perspective on world, national, and local politics.

Monday, May 2nd, 2022

Draft of opinion overturning Roe v. Wade leaks out of the United States Supreme Court

The Unit­ed States Supreme Court is poised to over­turn the land­mark Roe v. Wade deci­sion and once again allow states to crim­i­nal­ize the exer­cise of repro­duc­tive rights, includ­ing abor­tion care, a leaked draft of an opin­ion suggests.

Authored by Samuel Ali­to, one of George W. Bush’s two Supreme Court appointees, the draft declares that “Roe was egre­gious­ly wrong from the start” and “the deci­sion has had dam­ag­ing consequences.”

The doc­u­ment, which Ali­to appar­ent­ly devel­oped to serve as the rul­ing in Dobbs v. Jack­son Women’s Health Orga­ni­za­tion, was pub­lished by Politi­co ear­li­er this evening after the pub­li­ca­tion’s edi­tors con­clud­ed it was authen­tic.

“After an exten­sive review process, we are con­fi­dent of the authen­tic­i­ty of the draft,” Politi­co lead­er­ship told the edi­to­r­i­al staff. “This unprece­dent­ed view into the jus­tices’ delib­er­a­tions is plain­ly news of great pub­lic interest.”

The draft is authored in the style of a major­i­ty opin­ion that Ali­to’s right wing col­leagues Clarence Thomas, Neil Gor­such, Brett Kavanaugh, Amy Coney Bar­rett, and pos­si­bly John Roberts could join. The Court’s more lib­er­al jus­tices — Ele­na Kagan, Sonia Sotomay­or, and Stephen Brey­er (who is set to be replaced by Ketan­ji Brown Jack­son at the end of the term) are expect­ed to dissent.

Roe found that the Con­sti­tu­tion implic­it­ly con­ferred a right to obtain an abor­tion, but it failed to ground its deci­sion in text, his­to­ry, or prece­dent,” Ali­to’s draft, dat­ed Feb­ru­ary 10th, 2022 and addressed to his col­leagues, argues. “It relied on an erro­neous his­tor­i­cal nar­ra­tive; it devot­ed great atten­tion to and pre­sum­ably relied on mat­ters that have no bear­ing on the ‘mean­ing of the Constitution.”

“We do not pre­tend to know how our polit­i­cal sys­tem or soci­ety will respond to today’s deci­sion over­rul­ing Roe and Casey,” Ali­to adds later.

“And even if we could fore­see what will hap­pen, we would have no author­i­ty to let that knowl­edge influ­ence our deci­sion. We can only do our job, which is to inter­pret the law, apply long­stand­ing prin­ci­ples of stare deci­sis, and decide this case accord­ing­ly. We there­fore hold that the Con­sti­tu­tion does not con­fer a right to abor­tion. Roe and Casey must be over­ruled, and the author­i­ty to reg­u­late abor­tion must be returned to the peo­ple and their elect­ed representatives.”

Notice how the words “apply long­stand­ing prin­ci­ples of stare deci­sis” appear in extreme­ly close prox­im­i­ty to “Roe and Casey must be over­ruled.” The over­turn­ing of Roe is pre­cise­ly the kind of act of “raw judi­cial pow­er” that Ali­to’s draft assails repeat­ed­ly as a bad thing. But no mat­ter, because the jus­ti­fi­ca­tion here is irrel­e­vant. The Supreme Court’s right wing bloc has been itch­ing for the chance to get rid of Roe for a long time, and any ratio­nale will do — even a twist­ed one.

“For decades, the Supreme Court has upheld prece­dent and pro­tect­ed access to safe, legal abor­tions, as well as the pri­va­cy of a deci­sion made between women and their doc­tor. Now, due to extrem­ist Repub­li­cans and con­ser­v­a­tive jus­tices on the Supreme Court, women could lose access to the health care they need and that the over­whelm­ing major­i­ty of Amer­i­cans sup­port,” the Demo­c­ra­t­ic Nation­al Com­mit­tee (DNC) said in a state­ment after the pub­li­ca­tion of Politi­co’s article.

“Make no mis­take: repro­duc­tive rights will be on the bal­lot and this midterm elec­tion is more impor­tant now than ever before. Vot­ers will make their voic­es heard, we will fight back with every­thing we have, and Repub­li­cans will have to answer for their party’s relent­less attacks on Amer­i­cans’ rights.”

“If this is true, this kind of out­come is exact­ly what I’ve been ring­ing alarm bells about — and this is a five alarm fire,” said Unit­ed States Sen­a­tor Pat­ty Mur­ray (D‑Washington) in a state­ment cit­ing the release of the draft opinion.

“Repub­li­cans’ goal has always been to ban abor­tion: they’re already ban­ning abor­tion in state leg­is­la­tures across the coun­try, they’re fight­ing for a fed­er­al ban right here in the Sen­ate, and plan to over­turn Roe in the Supreme Court too.”

“In a mat­ter of days or weeks, the hor­ri­fy­ing real­i­ty is that we could live in a coun­try with­out Roe. If this is true, women will be forced to remain preg­nant no mat­ter their per­son­al cir­cum­stances. Extreme politi­cians will con­trol patients’ most per­son­al deci­sions. And extreme Repub­li­cans will have elim­i­nat­ed a fun­da­men­tal right an entire gen­er­a­tion of women have known their whole lives.”

“After ring­ing these alarms, for years now: it’s time to break the glass. It’s time for every sin­gle per­son — in every sin­gle state — to real­ize this impacts you, your choic­es, your rights. It’s not hap­pen­ing to some­one else, in some oth­er state — it’s hap­pen­ing every­where, and the high­est court in the land is prepar­ing to rip away your rights at this very moment.”

“We need to fight back with every­thing we’ve got right now. The right to abor­tion is on the line, and I’ll nev­er stop fight­ing to pro­tect it.”

“This draft opin­ion con­firms our worst fears,” said U.S. Sen­ate can­di­date Charles Book­er, who is chal­leng­ing Rand Paul in Kentucky.

“In a rad­i­cal act of gov­ern­ment over­reach, the con­ser­v­a­tive major­i­ty of the Unit­ed States Supreme Court has all but con­firmed that it intends to over­turn decades of set­tled legal prece­dent, which would deny mil­lions of Amer­i­cans their agency, human­i­ty, life-sav­ing health­care, and repro­duc­tive freedom.”

“I am dis­gust­ed, yet unsur­prised, by the deeply trou­bling rev­e­la­tion of SCOTUS’s strat­e­gy to over­turn Roe v. Wade,” said King Coun­ty Exec­u­tive Dow Con­stan­tine, using the abbre­vi­a­tion for Supreme Court of the Unit­ed States.

“Women and fam­i­lies will suf­fer because of this hate­ful, misog­y­nist agen­da to deprive women of their bod­i­ly autonomy.”

“I believe in and am com­mit­ted to the right of every woman to make the choice that is best for her­self and her fam­i­ly, and I will nev­er stop fight­ing to ensure that abor­tion and fam­i­ly plan­ning care are avail­able, with­out bar­ri­ers and unnec­es­sary restric­tions, in King Coun­ty and Wash­ing­ton State.”

“What right-wing zealots don’t under­stand, or sim­ply don’t care about, is that abor­tions will not stop hap­pen­ing if they are crim­i­nal­ized. They will sim­ply become unsafe. I urge all good peo­ple to make your voic­es heard, and join me in fight­ing for the preser­va­tion of repro­duc­tive rights and jus­tice across our nation.”

When the Supreme Court hands down its deci­sion in Dobbs v. Jack­son Women’s Health Orga­ni­za­tion, which will hap­pen no lat­er than the end of June, abor­tion care is expect­ed to become ille­gal in more than half the states.

In the Pacif­ic North­west, abor­tion care will remain legal in Wash­ing­ton and Ore­gon, where it is explic­it­ly allowed by state law.

In Ida­ho, abor­tion care will be ille­gal (Ida­ho leg­is­la­tors just recent­ly adopt­ed a Texas-style boun­ty law intend­ed to make obtain­ing an abor­tion unfeasible.)

In Alas­ka and Mon­tana, abor­tion care will like­ly remain legal for some peri­od of time fol­low­ing Roe’s immi­nent demise due to state con­sti­tu­tion­al pro­vi­sions. Alas­ka and Mon­tana have most­ly Repub­li­can elec­torates, how­ev­er, that are not sup­port­ive of repro­duc­tive free­dom, which is a concern.

The Guttmach­er Insti­tute main­tains a page that explains what the legal sta­tus of abor­tion is across the Unit­ed States in the absence of Roe. This page is worth book­mark­ing for future reference.

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