A version of this story appeared in CNN’s Race Deconstructed newsletter. To get it in your inbox every week, sign up for free here.
One takeaway from Justice Samuel Alito’s leaked draft opinion that would overturn Roe v. Wade: The US Supreme Court’s conservative majority is eager to prevent people from governing their own bodies, and willing to use the most bizarre logic to achieve that goal.
Another: The assaults on abortion rights and voting rights go hand in hand.
“Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences,” Alito claims in the draft. “And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”
Then Alito twists the knife.
“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” he writes.
The people’s elected representatives. Alito seems to disregard the profound inconsistency between the will of the people and the direction of some legislatures.
Even in the reddest states, “the share of people who think abortion should be illegal all the time maxes out at around 25%,” Natalie Jackson, the director of research at the Public Religion Research Institute, recently told the Los Angeles Times. And yet, propelled by partisan gerrymanders and voter suppression, a number of Republican-led state legislatures could enact legislation that their constituents don’t want.
In other words, to understand the attack by the conservative movement on abortion rights, we also must consider its effort to curtail access to the franchise.
And if Alito’s draft opinion is rendered, the consequences could stretch beyond just abortion. In the US, lots of other rights – including the right to marry a person of the same sex and the right to use contraception – depend on some of the same legal reasoning used to enshrine the right to abortion.
As a result, many fear that it isn’t only Roe that could be discarded.
How are the attacks on abortion rights and voting rights inextricably linked?
While abortion rights might not always rank among voters’ top political priorities, there has long been a tendency to isolate the issue from the matter of voting rights. That impulse couldn’t be more wrong, according to Melissa Murray, a law professor at New York University.
“You don’t get a restrictive law like HB 1510, the law that’s at issue in Dobbs v. Jackson Women’s Health Organization, or like SB 8, the law that has basically bedeviled federal courts for a few months now and stymied access to abortion in Texas, unless you’ve so gerrymandered the districts in your state that your legislature doesn’t necessarily reflect the scope of the populace,” Murray told CNN.
There also is the problem of voter suppression, which disproportionately disadvantages people of color and separates the party in power, the Republican Party, from public feedback – a key ingredient of democracy.
“You don’t have an opportunity to object to the passage of those restrictive laws in your home state if there are suppressive voter laws – and of course there are suppressive voter laws, in part because the Supreme Court has dismantled the Voting Rights Act preclearance regime,” Murray said. “The court has absented itself from the question of partisan gerrymandering, so there’s no federal court solution. It’s really left to the states to deal with those issues. And that’s a bit like allowing a burglar to correct whatever he’s stolen when he’s burgled your home.”
It’s hard to exaggerate the perils of overturning Roe. Economists warn that the “the financial effects of being denied an abortion are as large or larger than those of being evicted, losing health insurance, being hospitalized or being exposed to flooding due to a hurricane.”
In addition, Amanda Stevenson, a sociology professor at the University of Colorado Boulder, estimates that, without the right to abortion, pregnancy-related deaths will rise dramatically. Put a little bit more bluntly, “denying people abortions increases deaths because staying pregnant is more dangerous than having an abortion,” Stevenson recently told USA Today.
The reproductive rights movement has long inadequately served people of color, particularly those who lack resources. In her 1981 book, “Women, Race & Class,” Angela Davis charts how the “almost lily-White” abortion rights campaign of the 1970s “often failed to provide a voice for women who wanted the right to legal abortions while deploring the social conditions (especially poverty and other kinds of inequality) that prevented them from bearing more children.”
But this group has the most to lose if Roe falls.
“I’ve been in this movement for almost 20 years. We’ve worked hard not to have the reality of the people before us,” Cherisse Scott, the founder and CEO of SisterReach, a Memphis-based reproductive justice organization, told CNN, referring to the pre-Roe era. If the draft becomes the court’s final opinion, “it will undo the work generations of Black women and others have done to try to have some level of control over our bodies.”
What are the other implications of reversing Roe?
It’s rash to claim, as Alito does in the draft opinion, that overturning Roe can be cabined so that the decision has no effect on numerous other rights that Americans cherish.
For one, if you overrule a precedent that’s almost half a century old, that would indicate that the demands of stare decisis – the doctrine that the court should generally follow its precedents – aren’t really demands at all.
For another, “all of the complaints that Alito marshals to discredit Roe could easily be levied at any of these other precedents concerning marriage or contraception,” Murray said. “The idea that something is a constitutional apostasy because it’s not explicitly enumerated in the Constitution’s text or because the practice isn’t rooted in the traditions of the US, that might be said about a lot of things, such as interracial marriage, which until 1967 was proscribed in many states, or contraceptive use, which until 1965 was criminalized in many states.”
Jim Obergefell, the named plaintiff in the landmark 2015 case that legalized same-sex marriage in the US, echoed some of these concerns.
“This decision, and what Alito has to say about marriage equality, is a clear call to anyone who opposes marriage equality, who opposes LGBTQ equality, that they have a friend on the court. More than one friend. And that they should be happy or they should be willing to come after marriage equality,” Obergefell, a gay rights activist, said earlier this month.
Mary Ziegler, a law professor at Florida State University, explained that while she doesn’t think that the court would immediately overturn, say, marriage equality, she’s much less sure about what the court might do in five or 10 years.
“There’s a good analogy to when the court first said that you can’t constitutionally punish gay couples for having sex. It had a similar kind of disclaimer, where it was like, ‘Oh, this isn’t really about marriage equality – because that’s about public recognition while this is about what people do in the privacy of their homes,’” she told CNN. “At the time, you had conservatives dissenting and saying basically, ‘We don’t believe you. That may be true today, but we’ll see, long term, if this holds.’ And then in 2015, the same person who wrote the opinion about decriminalizing same-sex intimacy (Anthony Kennedy) wrote the opinion about how marriage equality is constitutionally required. I feel like it’s kind of a similar moment here.”
Alito’s draft opinion is, of course, a draft. While it likely tells the thrust of the court’s final opinion, certain aspects of that opinion might change.
Ziegler said that, in the weeks ahead, she’ll keep a close eye on the court’s tone, inconsequential as that might seem.
“This (the draft opinion) feels snarky, angry – not the opinion you would write if you were trying to minimize backlash,” she explained. “I think that it’s significant to see if there’s still this sort of nose-thumbing going on, because that sends a bigger message about where the court is. If the final opinion reads as ‘What are you going to do about it?’ and nobody does anything about it, that’s going to have ramifications even beyond abortion.”
