“The GOP is going to overturn Roe v. Wade, and that’s only the beginning.”
When I pitched a column with that headline last week to my editor, I didn’t anticipate we’d read an unprecedented leaked draft of a Supreme Court opinion that would explicitly overrule a woman’s right to abortion—something that’s been “settled precedent” for half a century.
Well, here we are now, thanks to a fully radicalized right-wing movement engaged in a zero-sum absolutist game to attain minority rule for white Christian men by any means necessary.
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Next month, the Supreme Court will finally rule in Dobbs v. Jackson Women’s Health Organization, regarding a Mississippi law that bans abortion after 15 weeks of pregnancy. A similar law was recently passed in Florida which was in part inspired by the Texas heartbeat bill that has spawned draconian copycat bills across the nation.
If the court upholds the law, and overturns Roe and Planned Parenthood vs. Casey, which affirmed that the state is prohibited from banning most abortions, the ruling will allow its right-wing majority to zero in on marriage equality and the use of contraceptives, which will be next on the chopping block.
By overturning Roe and Casey, America will join only three other backsliding democratic countries in the past 30 years to restrict a woman’s right to abortion. Meanwhile, 59 countries have expanded access.
The opinion of four men and Justice Amy Coney Barrett will lead to a likely prohibition on abortion in 26 states. In Texas, for example, a doctor could go to prison for life if they perform an abortion on a woman who was raped by a family member.
In the leaked draft opinion, Justice Alito justifies his ruling by claiming abortion isn’t an unenumerated right, and “the Constitution makes no reference to abortion and no such right is implicitly protected by any constitutional provision.” Well, same-sex marriage and the right to contraception are also unenumerated rights. The draft opinion assures us that overturning Roe would have no such impact on these other rights. However, by the right-wing majority’s very own logic used to dismantle Roe, these unenumerated rights don’t have any protection. But, hey, moderate Republican Sen. Susan Collins trusts these justices, so we should too!
Unlike many of my colleagues in the media industry, I take Republicans at their word. Like helpful James Bond villains, they’ve been telling us the plot all along, but many refuse to take them literally and seriously. During the confirmation hearing of Justice-designate Ketanji Brown Jackson, Republican senators gave us a sneak preview of their ambitious goals to strip away our hard-earned rights.
Sen. John Cornyn attempted to make the case that Obergefell v. Hodges, which legalized gay marriage, was faulty and an “edict” of the Supreme Court. He has an ally in Justice Alito. In a controversial 2020 speech at the Federalist Society, Alito whined that straight, religious families are apparently the real victims of marriage equality because people like Alito can no longer say, “that marriage is a union between one man and one woman. Until very recently, that’s what the vast majority of Americans thought. Now it’s considered bigotry.”
Meanwhile, Sen. Marsha Blackburn openly said she opposed Griswold v. Connecticut, a landmark 1965 decision that granted the right to privacy and paved the way for Roe. Specifically, it allowed married couples the right to buy and use contraceptives without government restrictions. Sen. Blackburn, of course, believes the decision was “constitutionally unsound.” She is joined by Sen. Mike Braun, who went a step further and said he would even be open to overturning Loving v. Virginia—which legalized interracial marriages nationwide.
Braun, instead, wants to let the states decide the issue (because that has worked out so wonderfully in the past for Black people trying to live their lives without fear of violence, harassment, inequality, and discrimination).
I wonder how Justice Clarence Thomas, who is married to Ginni Thomas, a white woman, would vote if such a challenge to Loving were brought before him? Maybe he’d take one for the team.
If all of this seems outlandish, well, so was the idea of Roe being overturned. Currently, we have Republicans banning books across the country, and passing laws designed to intimidate educators for teaching about diversity and “divisive” topics.
A grand undoing of civil rights by the right wing is now an all-too-possible reality, and we have to be prepared.
Melissa Murray, a legal scholar and professor of law at NYU, agrees with me that Republicans will most likely focus on gay marriage and contraception after they’re done hollowing out Roe. “Courts are the weapon of the minority,” Murray told me last week, before Justice Alito’s majority opinion was leaked. “Republicans are trying to do in court what they can’t do in majoritarian politics.”
Professor Murray said the dismantling of marriage equality could be a long-term project—by emphasizing First Amendment rights and religious freedoms to create religious accommodations and objections to same-sex marriage.
For example, the conservative majority in 2018 ruled in favor of a Colorado baker who refused to bake a wedding cake for a same-sex couple on the basis of a religious objection. Cases like this will allow the religious right to use the Supreme Court to chisel away at gay rights. “Once you narrow the space for same-sex couples to exercise their rights, once you normalize that they can’t expect equal treatment, then you’re on the road to normalizing different treatment,” Murray said, adding that it only takes about 10 to 20 years to entrench and mainstream such ideas.
Carlton Larson, a constitutional law professor from UC Davis King Hall School of Law, believes it’s possible that the Supreme Court could reverse Obergefell.
“This Supreme Court is being far more aggressive on a number of issues than I had expected. Two years ago I felt quite confident that Obergefell would not be reversed. Now it’s at least possible,” Larson said, adding that there’s some reason for hope. “On balance, I still think rather unlikely, given the huge number of marriages that have been entered into in reliance on Obergefell, and the lack of any obvious harm to society as a result.”
Still, Larson stresses that Obergefell was decided primarily as a substantive due process opinion, which allows courts to protect certain unenumerated fundamental rights from government interference.
If the conservative majority of the court is determined to undo the entire line of substantive due process cases as illegitimate, then it might not only be Obergefell, but also Griswold and Eisenstadt v. Baird (which gave unmarried people the right to possess contraception), up for reversal.
“I think reversing every single substantive due process case is a step too far even for this court, although there are probably a few justices who would be attracted by it,” Larson added, citing Pierce v. Society of Sisters—which allowed parents the right to send their kids to private schools—a decision of which conservatives were (and are) in favor.
Unfortunately, there’s no need for Republicans to be logically or morally consistent to achieve their end game.
For example, Professor Murray says that executive privilege is not an enumerated right in the Constitution, but Republicans are fine with Trump exercising the privilege to escape accountability. There’s no mention of qualified immunity in the Constitution, but Republicans grant police officers all the qualified immunity they want to escape accountability for their abuses—often at the expense of Black communities.
Republicans are for national security, until they’re fine openly supporting a violent insurrection and a coup. Republicans are pro-free market and pro-corporate speech, unless a corporation like Disney pushes back against Florida’s “Don’t Say Gay” bill, and then they’re perfectly fine using the government’s power to punish them. Republicans are the alleged defenders of free speech, unless, of course, that speech threatens them, then they’re fine banning books.
Republicans complain about liberal judicial activism, until they obtain power and use the court to invalidate the will of the majority.
When I talked to Professor Murray last week about the possibility of the majority losing all of these hard-earned rights, she was shocked that people weren’t taking the threat seriously. “No one is doing anything,” she lamented. “We are asleep at the wheel.”
It seems the leaked opinion finally got people’s attention. Crowds started gathering last night outside the Supreme Court demanding protection for women’s rights and upholding Roe v. Wade. Democratic Senators are openly calling to codify Roe into law by eliminating the filibuster. With almost 70 percent of the population against overturning Roe, Democrats have a galvanizing issue to mobilize their voters and even some independents.
Sometimes it has to get worse for things to get better. At the very least, it forces people to wake up.
