Brad Weaver-Unsplash
US Supreme Court
Following Politico’s reporting on a leaked draft opinion in Dobbs v. Jackson Women’s Health Organization, the case in front of the U.S. Supreme Court determining the future of abortion rights in America, it seems likely that Roe vs. Wade will be overturned, and very soon.
The opinion, written by Justice Samuel Alito, draws on long-standing conservative arguments peddled for years by the pro-life Christian right. Alito, conservative and bitter, called Roe “egregiously wrong” and ruled that the question of abortion should be instead posed to the states.
A self-described “practical originalist,” Alito and four concurring justices pursued a close interpretation of the U.S. Constitution to an extreme and threw practicality out the window — the opinion reads like a wish list for those who want to turn back the clock hundreds of years.
An America where, notably, people who could give birth were viewed as property, with agency rarely allotted to them when it came to their bodies.
“The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions,” Alito argued in the 98-page draft. “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.”
Of course there are a number of rights we enjoy today, that, like access to abortion, were never explicitly spelled out in our country’s founding documents.
His argument is therefore a slippery slope, one that threatens landmark cases like Obergefell v. Hodges, the 2015 case that guaranteed the right to marriage to same-sex couples; Griswold v. Connecticut, the 1965 case that protects the liberty of married couples to buy and use contraceptives without government restriction; and Loving v. Virginia, the 1967 case that ruled that laws banning interracial marriage violate the Equal Protection and Due Process Clauses of the 14th Amendment.
Who’s to say they are not next, if unenumerated rights like the right to abortion are thrown out like this? Or if justices get to change the law to accommodate their personal, religious beliefs again and again?
The constitutionality of the right to abortion has already been dissected and debated by the Supreme Court. Additionally, the right to an abortion is supported by a majority of the American public. Alito’s claim that Roe has had “damaging consequences” and is “far from bringing about a national settlement of the abortion issue” is made in bad faith. Just this week, an ABC News/Washington Post poll found that majorities of Americans support upholding Roe, say abortion should be legal in all or most cases and — by a wide margin — see abortion as a decision to be made by a woman and her doctor, not by lawmakers.
Overruling Roe is therefore not a correction of the law, it is simply tyranny by a minority — tyranny by a group of people hell-bent on endangering the lives of millions for the sake of subjective moral indignation.
And if that isn’t bad on its own, whatever precedent this possible overruling sets, is almost certainly going to be used by conservative Christian groups to overturn other unenumerated rights they don’t agree with.
Alito and his fellow justices are playing a dangerous game; by attempting to settle scores of the past, they very well might be opening a Pandora’s box to a devastatingly precarious legal future — one that involves much more than liberal versus conservative political disagreements.
We are months away from a constitutional crisis if this draft opinion is finalized by the Supreme Court. May Alito’s words, “We hold that Roe and Casey must be overruled,” never see the light of day.
Nada Elmikashfi is chief of staff to state Rep. Francesca Hong and a former candidate for state Senate.
