A leaked draft U.S. Supreme Court opinion overturning Roe v. Wade represents both the culmination of a 40-year conservative campaign to remake the country’s judiciary and a potentially tectonic shift in the enforcement of civil rights.
If the invalidation of abortion rights goes ahead, it could open the door to litigation over other previously decided issues predicated on the same legal reasoning as Roe, such as same-sex marriage, legal scholars say. And it could signal how the court’s newly empowered right-wing majority will rule on a host of other major matters, including affirmative action, immigration, climate change, guns and voting rights.
Emboldened anti-abortion campaigners are already pressing ahead with even tougher legislation, looking to punish people for getting abortions, and stop them from accessing pills and procedures in other states.
With a top court dominated by a conservative majority unlikely to change any time soon, U.S. jurisprudence could be in for a decades-long shift to the right.
“It’s been a long time coming. I think we’re seeing the winds of change,” said Bryan Kemper, a 54-year-old Ohioan who has been involved in anti-abortion activism since the 1980s, as he stood outside the Supreme Court this week. “But this doesn’t mean the battle is over.”
The court is not expected to issue its ruling in Dobbs v. Jackson Women’s Health Organization until next month. Justice Samuel Alito’s draft, backed by four other conservative justices and published this week by Politico, contains a disclaimer saying it applies only to abortion and not to other cases. But its legal reasoning turns on negating the right to privacy, on which the 1973 Roe decision is based, because it is not explicitly written into the Constitution.
The right to privacy was also at the centre of other landmark cases, including Obergefell v. Hodges, which legalized same-sex marriage nationwide in 2015, and Griswold v. Connecticut, which prevented state governments from banning the use of contraceptives in 1965.
“Alito’s draft is a blueprint for the people of the United States losing a lot of rights that we have enjoyed and come to rely on,” said Jim Obergefell, the plaintiff in the same-sex marriage case. “Those fundamental rights that aren’t printed out in the Constitution, they’re now at risk, and it terrifies me.”
The court majority’s apparent readiness to go as far as overturning abortion rights is raising liberal fears that it will also be willing to rule consistently in a more conservative direction.
The justices could, for instance, find affirmative action is unconstitutional in the pending case of Students for Fair Admissions v. Harvard, which challenges the right of universities to prioritize underrepresented racial groups in admissions.
They could also uphold state laws that make it harder to vote. Several court cases are currently playing out over these laws, which opponents say are deliberately designed by Republican legislators to disenfranchise Black voters, who lean Democratic.
Other major legal fights currently in front of the Supreme Court, or that may soon come up, include efforts to overturn climate-change regulations, make it easier to carry concealed guns, block asylum seekers from entering the country through Mexico, roll back Obamacare and gerrymander electoral districts.
Laurence Tribe, a Harvard Law professor and constitutional expert, drew parallels with conservative-dominated courts in the 1850s and 1890s that promulgated decisions depriving Black Americans of citizenship and allowing for racial segregation. Some of these decisions remained in place for more than 50 years.
“We are now in an era where it may take decades to do to this Alito disaster what we did with Dred Scott and Plessy v. Ferguson,” he said. “We may be in for a period of years, maybe decades, where freedom is suppressed in America. And because it will also suppress political rights, voting rights, allow for gerrymandering, we may be witnessing the death throes of freedom and democracy.”
Josh Blackman, a member of the Federalist Society, a conservative legal association, said he did not think the overturning of Roe would necessarily signal a wholesale shift to the right. For one, issues such as affirmative action and voting rules concern different parts of the Constitution than abortion. For another, abortion is a singularly unifying issue for social conservatives, he said. Efforts to ban same-sex marriage, for example, do not have nearly as much heft.
“The movement to overrule Roe is one of the galvanizing forces for the conservative legal movement. There are not many issues on which conservatives can unite this broadly,” said Prof. Blackman, who teaches at the South Texas College of Law.
He said he was also wary of the possibility that two Supreme Court justices picked by former president Donald Trump, Brett Kavanaugh and Amy Coney Barrett, could turn out to be the next Sandra Day O’Connor or David Souter, former justices who were appointed as conservatives but sided with the court’s liberals on major cases. Both, for instance, upheld Roe in 1992′s Planned Parenthood v. Casey.
Prof. Blackman said Justice Barrett did not have a long enough track record as a lower-court judge for him to be certain how she would rule. Justice Kavanaugh has sometimes sided with liberals in rulings on campaign finance and police searches.
“Barrett had been a judge for five minutes when she was appointed. Kavanaugh has more red flags than a Chinese May Day parade. They make it hard to predict,” Prof. Blackman said.
But Carrie Severino, president of the Judicial Crisis Network, a group that campaigns for the appointment of conservative judges, said there has already been evidence that the court is moving in a more conservative direction. In a ruling last year, for instance, five conservative justices struck down an attempt by New York State to put pandemic-related restrictions on religious services while allowing businesses to open.
“It’s very exciting. It’s good to see justices who are committed to the Constitution as written. That has been a long-time goal of the conservative movement, and there have been decades of work towards this understanding, this approach,” Ms. Severino said.
“It’s evidence of a change in the direction of the court that’s been going for a long time. We’ve seen its effect in other cases over the last couple of years, and we will see it in the future.”
Anti-abortion activists are already girding to go further. A Louisiana bill would classify abortion as a homicide, allowing patients and doctors to be prosecuted for murder. Legislation in Missouri would stop people from travelling to other states to get abortions, and crack down on the distribution of abortion-inducing drugs.
The fight to change the judiciary has been a long game for these activists. After a series of major Supreme Court civil-rights rulings between the 1950s and the 1970s, conservatives felt that the justice system had a liberal bias. The primary instrument of their pushback became the Federalist Society, created in 1982.
The Society has produced a pool of reliably conservative lawyers that Republican politicians can draw on when appointing judges. They promote legal doctrines of “originalism” and “textualism,” holding that the Constitution and other laws must be interpreted as they were understood at the time they were crafted, and without going beyond what’s spelled out in the text.
“This is a movement that has had an unbroken, laser focus on taking control of the courts,” said Amanda Hollis-Brusky, a political scientist and author of Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution.
Liberals, by comparison, have put relatively little focus on judicial appointments. There is no leftist Federalist Society equivalent. Polls of Democratic voters have shown that control of the Supreme Court is not the motivating issue for them that it is for Republicans.
Things may have reached a tipping point under Mr. Trump. He used a list of judges vetted by the Federalist Society to make three Supreme Court appointments. His White House counsel, Don McGahn, brought in Leonard Leo, the Society’s vice-president, to help him fill vacancies throughout the federal judiciary.
Republican Senate leader Mitch McConnell blocked then-president Barack Obama’s attempt to fill a Supreme Court seat in 2016 before pushing through Mr. Trump’s judicial appointments at a rapid rate. By the end of Mr. Trump’s term, the Supreme Court had a six-to-three conservative majority.
Outside the Supreme Court this week, anti-abortion protesters celebrated their expected victory. “We’re gonna party!” one man shouted through a megaphone.
Abortion-rights demonstrators, meanwhile, lamented the likely reversal in what they had once thought was a long-settled debate.
“It feels really scary,” said Madison Summers, 23, who carried a sign with the words “we’re not going back,” and a picture of a coat hanger. “It makes me, as a person who grew up here with all kinds of rights, want to leave the country.”
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