The preliminary leak of a pivotal court decision reveals the U.S. Supreme Court is ready to overturn Roe v. Wade and put gay and interracial marriage on notice.
Politico obtained a draft majority opinion, written by Justice Samuel Alito and labeled “Opinion of the Court,” in which conservative justices sided with the state of Mississippi in the case Dobbs v. Jackson Women’s Health Organization. Court leaders later confirmed the draft to be authentic, but the decision will not be official until later this year.
“We hold that Roe and Casey must be overruled,” the court wrote. “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”
Judges argue that the legality of issues not directly enshrined in the Constitution must be decided at the state level, but removing federal protections from abortion and other acts not specifically covered by the Constitution imperils abortion access in many states, including Mississippi, which contains “trigger laws” that automatically ban abortion, with few exceptions. Kentucky also has a trigger law passed in 2019 that would ban abortions and make performing them a felony offense. Kentucky offers few exceptions to prevent the death or serious injury of the person giving birth. The ban will adversely affect impoverished women who will not be able to afford to go out of state to get an abortion.
But critics say the court’s decision to let states decide legality is flawed because state voters in places like Kentucky and Mississippi have little choice in picking their political leaders. Political parties have gerrymandered state districts so thoroughly that voter influence is broken, and politicians get to pick their voters during redistricting procedures. The ACLU filed a lawsuit just this year claiming Republican leaders in Mississippi are funneling Democratic-voting Black residents into the wastes of rural Jasper county in order to cull the political influence of urban areas in the cities of Hattiesburg and Laurel.
Many of these same gerrymandered states had to be dragged kicking and screaming into accepting gay marriage as legal, and bigots are eager to turn back the clock on gay marriage and any other practice they consider abhorrent. Sen. John Cornyn, D-Texas, expressed his personal dislike at the court’s 2015 Obergefell v. Hodges decision granting same-sex couples the constitutional right to marry. Other rights not expressly guaranteed by the constitution that could soon be under attack include the right to adoption, contraception, the right to privacy and the right to marry regardless of color as well as gender. Mississippi reversed its miscegenation laws as late as the 1980s, but racist leaders could easily revive them if politicians see the court’s move as a dissolution of miscegenation laws. Plenty of state leaders are still hotly racist; this month Mississippi Republican Gov. Tate Reeves voted to enshrine a Jim Crow law that locks almost 20 percent of the state’s Black population from voting.
Democrats in the U.S. Senate reacted to the decision by attacking the runaway GOP court. House Speaker Nancy Pelosi, D-Calif., and Senate Majority Leader Charles E. Schumer, D-N.Y., both denounced the conservative majority as “in no way accountable to the American people.” Sen. Elizabeth Warren, D-Mass., described the preliminary decision as the result of a conservative effort to grab a “majority on the bench who would accomplish something that the majority of Americans do not want.”
Rep. Jamie B. Raskin, D-Md, dismissed the majority as a crooked, partisan group “handpicked and gerrymandered by theocrats and autocrats.”
Baskin referred to Republican efforts within the last two decades to mold the court in the GOP’s image, including Senate Republicans’ successful blockade of President Obama’s supreme Court appointment so they could hold the position open for Donald Trump to fill.
Critics say the court now is the product of undemocratic tactics like gerrymandering and the Electoral College, which allows candidates to take the White House without winning a majority. Democrat presidents won the popular vote in seven of the past nine presidential contests, but Republican presidents snatched four of those nine elections with the help of the electoral college and have appointed six of nine current justices.
Republican Senators, who can apparently hold Democratic judicial appointments hostage, similarly benefit from undeserved power. All states get only two senators, regardless of their population. This means Mississippi’s population of less than 3 million gets the same number of senators as California’s nearly 40 million people. A calculation by the Carsey School of Public Policy at the University of New Hampshire reveals that the 50 Republican senators who dictate judicial appointments received 63 million votes in their most recent elections, while the 50 Democratic senators have 87 million voters behind them.
A minority is clearly in charge of the nation, and women are their first victims. Others may soon follow.