Tuesday Reads: War on WomenPosted: May 3, 2022
It has finally happened. Roe v Wade will be overturned, and women will be stripped of their constitutional right to bodily autonomy. Forced birth will be legal in 22 states as soon as the decision is announced. Women will die. This is what Hillary warned us about in 2016. And it’s not just women who will have their rights taken away. Roe v. Wade is based on the right to privacy, which also underlies decisions about civil rights like gay marriage, the right of same sex people to have sex in their own homes, the right of adults to have access to birth control, and the right of people of different races to marry.
As Dahlia Lithwick pointed out last year, we are not headed back to the way it was pre-Roe; this is going to be far worse than that. We are likely going to see laws establishing the “personhood” of fetuses. From the Slate article, Dec. 8, 2021
There has been a tendency, in the week since it became clear the U.S. Supreme Court will likely either uphold Mississippi’s unconstitutional 15-week abortion ban or overturn Roe v. Wade outright, to suggest that when this happens, America will return to the days “pre-Roe.” That is intended to mean, one assumes, that we will go back to a patchwork of laws in the various states, and see the grim return of women attempting to terminate their own pregnancies with sometimes lethal results as well as the backroom illegal abortions that were the norm before Roe became law. But it is not quite accurate to say this would be a simple return to life pre-Roe: If the boldest voices in the pro-life movement have their way, America would not so much be reverting to its pre-Roe past but slipping sideways into something that could be—believe it or not—much worse.
Michelle Goldberg made this point two years ago in the New York Times, after Alabama, Georgia, and Missouri passed a raft of (at the time) unthinkably punitive abortion bans immediately after Brett Kavanaugh was seated at the Supreme Court. As she wrote at the time, “it’s important to understand that we’re not necessarily facing a return to the past. The new wave of anti-abortion laws suggests that a post-Roe America won’t look like the country did before 1973, when the court case was decided. It will probably be worse.”
Anyone listening carefully to the newly ascendant views of abortion opponents can hear it—the talk of legal “fetal personhood” and of punishing mothers who endanger an embryo takes us into a new, uncharted, and theological realm that is quite different even from the status quo before Roe….
Prior to Roe, faith groups were hardly monolithic in their opposition to abortion. Many religious leaders stood firmly on the side of the health and welfare of mothers….But in the decades since, hard-line religious opposition to Roe has both solidified and moved the goal posts. Since 1984, the Republican Party platform has called for a constitutional amendment banning abortion nationwide. The ground has shifted.
In other words, this doesn’t necessarily end at “returning abortion to the states.” Talking to the New Yorker’s Isaac Chotiner this week, Marjorie Dannenfelser, president of the Susan B. Anthony List, talked about plans for a nationwide 15-week abortion ban in the years to come. Religious groups that oppose abortion now speak openly of a project set forth by scholars such as John Finnis, a professor emeritus at the University of Notre Dame, who argued in the Catholic journal First Things that legislators who wrote the 14th Amendment viewed unborn children as persons, such that unborn children would receive the full guarantees of equal protection and due process of the law under the 14th Amendment.
Yesterday, Lithwick wrote: The Supreme Court’s Legitimacy Is Already Lost. Regardless of Roe falling, the leaks, and the Court’s disregard for the public it is supposed to serve, have already gone too far.
If the Supreme Court indeed strikes down Roe v. Wade and Planned Parenthood v. Caseythis June, as the draft opinion leaked to and published by Politico tonight suggests it will, years of conventional wisdom about the court and its concerns for its own legitimacy will be proven wrong. Every single court watcher who spoke in terms of baby steps, incrementalism, or “chipping away” at one of the most vitally important precedents in modern history will have been wrong. Those who suggested that the court would never do something so huge and so polarizing just before the November midterms will have been wrong. And the people who assured us that Brett Kavanaugh and Amy Coney Barrett were moderate centrists who cared deeply about the appearance of a non-ideological and thoughtful court, well yeah. They will have been wrong too.
If this draft opinion becomes precedent of the court, the results will be catastrophic for women, particularly for women in the states that will immediately make abortion unlawful, and in those places, particularly for young women, poor women, and black and brown women who will not have the time, resources, or ability to travel out of state. The court’s staggering lack of regard for its own legitimacy is exceeded only by its vicious disregard for the real consequences for real pregnant people who are 14 times more likely to die in childbirth than from terminating a pregnancy. The Mississippi law—the law that this opinion is upholding—has no exception for rape or incest. We will immediately see a raft of bans that give rights to fathers, including sexual assailants, and punish with ever more cruelty and violence women who miscarry or do harm to their fetuses. The days of pretending that women’s health and safety were of paramount concern are over.
Lithwick notes that the American people overwhelmingly support abortion rights, but the extremist on the Court simply don’t care.
…[I]n his draft opinion Justice Alito wants America to know he doesn’t care about voters’ feelings. “We cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work,” Alito writes. “We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision.”
Ironically, whoever decided to leak the opinion cared very much about the political implications of the impending decision. It is one of the most brazenly political acts to ever come out of the court, actually. It is perhaps the most emphatic confirmation that there are simply no rules left at an institution that is supposed to be the one making the rules, but is instead currently under unprecedented public scrutiny for its very absence of binding rules.
Lyz Lenz grew up in a right wing “christian” home and is very familiar with the attitudes of right wing “christian” extremists. She writes at her blog Men Yell at Me: This Was Always The Plan.
I grew up one of eight children. We were washed, dressed in coordinating jumpers and shirts, and trotted out on stage at church on Right to Life Sunday, where our mother would testify that we were an example of always choosing life.
We went to rallies, too. Bows in our hair, marching beneath the angry shouts and the ghostly, whale-like images of aborted fetuses that would haunt me at night as I tried to sleep
My whole life, I knew the plan. Vote for politicians who’d nominate justices who would overturn Roe v. Wade. Abortion was murder. I heard this preached in churches; at Sunday dinners over brisket. I heard the plan at rallies for homeschoolers in D.C., where we’d lobby our senators for more rights for families — or so I was told.
I heard about the plan when, as a teen, I read fundraising fliers for Christian schools that would turn out a whole new generation of lawyers, lawyers with a Godly worldview, who’d overturn Roe v. Wade.
I heard about it again in 2016, when a nice lady from church smiled at me at school drop-off the day after Trump was elected. “I didn’t want to vote for him,” she whispered to me. I was hung over, and sick. “But he will put good judges in place to overturn Roe v. Wade.”
Later, when I wrote a book about Christianity and the Midwest, and then another about mythology and motherhood, people at book events, journalists in interviews and editors looking for a hot take would all ask me why people would vote for a candidate like Trump. “To overturn Roe,” I’d say. And they’d scoff. No, no. That can’t be it.
But it is. It’s always been the plan. And it’s never been a secret. The plan has been shouted at rallies. Held up on signs. It’s been plotted and spoken of and written about over and over.
Click on the link to read the rest. It’s well worth your time.
This is from historian Heather Cox Richardson at her substack blog, Letters from an American: May 2, 2022.
Tonight, news broke of a leaked draft of what appears to be Supreme Court Justice Samuel Alito’s majority decision overturning Roe v. Wade, the 1973 Supreme Court decision establishing access to abortion as a constitutional right.
That news is an alarm like the 1857 Dred Scott v. Sandford decision declaring both that Black Americans had no rights that a white man was bound to respect and that Congress had no power to prohibit human enslavement in the territories. The Dred Scott decision left the question of enslavement not to the national majority, which wanted to prohibit it from western lands, but to state and territorial legislatures that limited voting to white men.
According to law professor and legal commentator Neal Katyal, the draft appears to be genuine and shows that in a preliminary vote, a majority of the court agreed to overturn Roe v. Wade. It takes a hard-line position, saying that states can criminalize abortion with no exceptions for rape and incest. This is a draft and could change before actually being handed down, but it has already stirred a backlash. As soon as the draft hit Politico, which published it, security put up fences around the Supreme Court in expectation of protesters and counterprotesters.
We are in a weird moment, in which Democrats are trying to shore up democracy while Republicans are actively working to undermine it. House Speaker Nancy Pelosi (D-CA) and Senate Majority Leader Chuck Schumer (D-NY) issued a statement after the draft leaked, calling the draft “one of the worst and most damaging decisions in modern history.” They noted that the justices lied to senators to get confirmed, saying they considered Roe v. Wade settled law, and are now—if the draft is confirmed—stripping away from American women a constitutional right they have held for 50 years.
Richardson ties together the Court’s likely decision to strip women of their rights to the Republican Party’s war on democracy. Read the whole thing at the link above.
Republicans know very well that 70 percent of American voters support abortion rights, so they are instead focusing on the leak instead of the prospect of women once again becoming second class citizens. The Daily Beast: Laura Ingraham Wants FBI to Hunt Down SCOTUS Leaker: ‘Give Me Your Phone!’
The FBI should launch an investigation to find the person responsible for leaking to the press a Supreme Court draft opinion that would overturn Roe v. Wade, Laura Ingraham said Monday. The leak, which is the first of its kind, should also spur Chief Justice John Roberts to act, she said. “It’s incumbent upon him to bring in every law clerk before him… or the FBI. ‘Give me your phone. We want all your accounts. We’ve got to do our own—look at every device you’ve ever used, and find out who did this.’” The Fox host claimed that “there are names floated out there” for possible leakers but declined to go into detail. Ingraham then said she dreaded the consequences—as others on Fox News did earlier in the night—of the leaker being celebrated by those on the left. “That’s the end of the court,” Ingraham predicted. “Clerks are never going to be able to have this role at the court that they have now. They’re never going to be able to have access to opinions. I don’t know what will happen to the court, period, if that’s the case.”
I’ve been assuming this was leaked by someone who is outraged by the Alito opinion, but check out this Twitter thread from a Yale law professor:
Read the rest of the thread on Twitter.
One more from Aaron Rupar at Public Notice: The very simple reason Republicans are railing against leaks instead of celebrating the seeming demise of Roe.
You’d think Republicans would be taking a big victory lap, considering ending abortion rights is something most of them have campaigned on since the Nixon administration. Instead, however, they’re focusing on railing against whoever leaked the decision, and bemoaning the death of norms.
“To violate an understanding that has held for the entire modern history of the Court — seeking to place outside political pressure on the Court and justices themselves — is dangerous, despicable, and damaging,” lamented Sen. Mike Lee in a statement….
“This is a blatant attempt to intimidate the Court through public pressure rather than reasoned argument,” tweeted Sen. Ted Cruz. “I hope my fellow former clerks and the entire legal community will join me in denouncing this egregious breach of trust.” [….]
“The Court should not abide this coordinated assault by the left,” added Sen. Josh Hawley in a tweet of his own. “Issue the decision now.
Senate Majority Leader Mitch McConnell went as far as to suggest the leaker should be charged with a crime, even though legal experts say leaking a SCOTUS draft decision is not unlawful.
They are angry, because they know this decision goes against popular opinion.
Polls consistently show overturning Roe is opposed by a majority of between 58 and 70 percent of Americans….
And ending federal abortion rights isn’t just unpopular in blue states. According to Data for Progress, there isn’t a single state in the union where support for a federal ban on abortion — something antiabortion activists and Republicans are already talking about — has more than 30 percent support….
In short, while railing against abortion rights is a good way to rile up the Republican base, it doesn’t resonate with the general public. And that’s why Democrats are already expressing hope the SCOTUS draft decision could help them in the upcoming midterm elections.
That’s all I have the stomach for this morning. I expect there will be many more reactions forthcoming throughout the day and in the days and weeks to come.