So the breaking news Monday night is that Politico has obtained a working first draft of an opinion by Justice Samuel Alito, one of the most radical Republicans on the Supreme Court, reversing Roe v. Wade and Planned Parenthood v. Casey. Supreme Court has voted to overturn abortion rights, draft opinion shows.
As an initial matter, as Politico observes, “No draft decision in the modern history of the court has been disclosed publicly while a case was still pending.” This is unprecedented. The Supreme Court is a citadel of secrecy, and has been the most secure of government institutions. This breach of security shatters this norm. There is a small universe of persons who have access to draft opinions: the justices, their law clerks, and the court’s in-house printing office. I have no doubt that every one will be questioned by the Court as a result of this security breach in search of the leaker. If discovered, that indivividual’s legal career is over.
UPDATE: From Amy Howe at SCOTUSblog, Roberts orders leak investigation as court confirms authenticity of draft opinion.
Now that this norm has been shattered, will it lead to future leaks of controversial opinions? The integrity of the court, already badly damaged by its radical Republican majority, Just 37% of Americans approve of the Supreme Court, an all-time low for the judicial body, will be further damaged. The Court must rely on the public’s faith in the integrity of the institution for its decisions to have the force of law. When it has lost that, it has lost all authority.
He covered SCOTUS since 1958, and is recently retired, but “Waiting for Lyle” to weigh in:
It will be sad, indeed, if America gets hung up on the leak of a draft SCt opinion, esp. who leaked it and why, but loses sight of what that opinion — if comes out that way — really will mean about SCt's role, the Constitution, and the concept of liberty in the US.
— Lyle Denniston (@lylden) May 3, 2022
In Federalist No. 78, Alexander Hamilton explained that the judiciary would be the least dangerous branch of government, comparing it to the executive and legislative branches who would control the military and the money:
Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
Hamilton has been proved wrong. Five unelected Justices are dangerous and are pursuing a decades-long political agenda of the Republican Party to strip women of their reproductive freedom. Since the 1980s, after the last pro-choice Republicans abandoned the Republican Party, every Republican candidate for office at every level of government from state legislature up to president of the United States has pledged their solemn oath to overturn Roe v. Wade and strip women of their reproductive freedom. They have stacked state and federal courts with radical Republican judges from the Federalist Society and the [Confederate] Heritage Foundation who are committed to to this political agenda.
I must point out that Roe v. Wade was a 7-2 decision with five Republican Justices in the majority, including Justice Blackmun who authored the opinion. In the bitterly divided 5-4 decision in Planned Parenthood v. Casey some two decades later, the majority opinion was authored by three Republican Justices and joined by two other Republican Justices. So when Justice Alito systematically attacks the decision in Roe v. Wade and Planned Parenthood v. Casey, he is attacking the opinion of Republican Justices. These cases have been upheld numerous times over the years by the Supreme Court, including by the Roberts Court just a few years ago. This demonstrates just how extremist the radical Republican majority currently on the court is. They are a threat to fundamental liberties.
It took almost 50 years, but the dog has finally caught the car. Now what?
The answer lies in the language of the majority opinion in Planned Parenthood v. Casey:
Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution protects a woman’s right to terminate her pregnancy in its early stages, Roe v. Wade,410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), that definition of liberty is still questioned.
Justice Alito’s working draft opinion is not just an assault on Roe v. Wade, but on the Court’s long series of opinions under substantive due process recognizing privacy rights in a person’s most basic decisions about marriage, family and parenthood. All of these liberty rights that people take for granted today are now threatened by this radical Republican Supreme Court.
Constitutional protection of the woman’s decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment. It declares that no State shall “deprive any person of life, liberty, or property, without due process of law.” The controlling word in the case before us is “liberty.” Although a literal reading of the Clause might suggest that it governs only the procedures by which a State may deprive persons of liberty, for at least 105 years, at least since Mugler v. Kansas, 123 U.S. 623, 660-661, 8 S.Ct. 273, 291, 31 L.Ed. 205 (1887), the Clause has been understood to contain a substantive component as well, one “barring certain government actions regardless of the fairness of the procedures used to implement them.” Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 665, 88 L.Ed.2d 662 (1986).
* * *
It is also tempting, for the same reason, to suppose that the Due Process Clause protects only those practices, defined at the most specific level, that were protected against government interference by other rules of law when the Fourteenth Amendment was ratified. See Michael H. v. Gerald D., 491 U.S. 110, 127-128, n. 6, 109 S.Ct. 2333, 2344, n. 6, 105 L.Ed.2d 91 (1989) (opinion of SCALIA, J.). But such a view would be inconsistent with our law. It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. We have vindicated this principle before. Marriage is mentioned nowhere in the Bill of Rights and interracial marriage was illegal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause in Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1824, 18 L.Ed.2d 1010 (1967) (relying, in an opinion for eight Justices, on the Due Process Clause).
Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U.S. Const., Amend. 9.
“[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.” Poe v. Ullman, supra, 367 U.S., at 543, 81 S.Ct., at 1777 (Harlan, J., dissenting from dismissal on jurisdictional grounds).
Justice Harlan wrote these words in addressing an issue the full Court did not reach in Poe v. Ullman, but the Court adopted his position four Terms later in Griswold v. Connecticut, supra. In Griswold, we held that the Constitution does not permit a State to forbid a married couple to use contraceptives. That same freedom was later guaranteed, under the Equal Protection Clause, for unmarried couples. See Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972). Constitutional protection was extended to the sale and distribution of contraceptives in Carey v. Population Services International, supra. It is settled now, as it was when the Court heard arguments in Roe v. Wade, that the Constitution places limits on a State’s right to interfere with a person’s most basic decisions about family and parenthood, see Carey v. Population Services International, supra; Moore v. East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977); Eisenstadt v. Baird, supra; Loving v. Virginia, supra; Griswold v. Connecticut, supra; Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); Pierce v. Society of Sisters, supra; Meyer v. Nebraska, supra, as well as bodily integrity. See, e.g., Washington v. Harper, 494 U.S. 210, 221-222, 110 S.Ct. 1028, 1036-1037, 108 L.Ed.2d 178 (1990); Winston v. Lee, 470 U.S. 753, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985); Rochin v. California, 342 U.S. 165, 72S.Ct. 205, 96 L.Ed. 183 (1952).
Justice Alito rejects substantive due process and privacy rights, making the “textualist” argument rejected in Casey, to wit, “If it’s not in the text of the Constitution, the right does not exist.” This will come as a shocking surprise to the vast majority of Americans today who take their privacy rights for granted.
I cannot emphasize this enough: An individual constitutional right once granted has NEVER been been reversed by the Supreme Court. This is unprecedented, and is a radical departure from American jurisprudence. It may lead to a “slippery slope” of other rights being reversed by this radical Republican Supreme Court.
(One can fairly argue that the Roberts’ Court assault on the Voting Rights Act created a permission structure for this, a playbook if you will.)
We already see this in this court’s decisions on abortion this year. The anti-abotion groups for years avoided these tabooos: they would never deny the victim of rape or incest access to abortion, and they would never subject the abortion doctor or the woman seeking abortion to criminal prosecution. But in the Court’s decisions on the statutes from Texas and now Mississippi, Justice Alito upholds an abortion law with no exception for rape or incest – Alito requires the victim of rape to carrry to term the baby of her rapist – and the law subjects the abortion doctor and medical staff to criminal prosecution.
The Texas law goes even farther: It allows for prosecution of anyone who assists a woman in obtaining an abortion. This has a chilling effect on a woman confiding in her husband or boyfriend, mother or other family relative, her friends, or a trusted counselor. She cannot risk subjecting them to prosecution for helping her. She is alone and isolated. And the Texas law provides for a “bounty” to any random member of the public who turns in anyone who has assisted a woman in obtaining an abortion – a concept borrowed from the Fugitive Slave Acts. This is truly Margaret Atwood’s dystopian nightmare vision of America in “A Handmaid’s Tale.” The anti-abortion groups saw it as a how-to manual.
It is only a matter of time before the last taboo is the next to fall: criminalizing the woman who seeks an abortion. Every woman who has a miscarriage will have to be investigated for the possibility that she induced a miscarriage. The state will add to her anguish by an overzealous prosecutor pursuing her for criminal charges for abortion.
Michigan has a GOP legislature ready to do this https://t.co/DLmWWtnIPY
— Ryan Grim (@ryangrim) May 3, 2022
States that have enacted laws to be “safe havens” for women to obtain an abortion will be tageted next. The next frontier for the antiabortion movement: A nationwide ban. If Americans are foolish enough to elect these radical Republicans to a majority in the House and Senate this November, I can guarantee you that Republicans’ top priority will be to criminalize abortion in federal law. The bills will be H.B.1 and S.1. in January 2023.
And the “Grim Reaper of Democracy,” Mitch McConnell, who has weaponized and abused the Senate filibuster rule more than any senator in history, will announce that in his organizing rules for the new Senate in 2023, that the Senate will eliminate the Senate filibuster rule in order to enact this federal criminal statute on abortion. Margaret Atwood’s “A Handmaid’s Tale” will become a reality, and Democrats will be powerless to stop it.
The anti-abortion zealots will then try to overturn Griswold to eliminate the right to contraception, something they have been already been pursuing in the Hobby Lobby and Little Sisters of the Poor cases.
The religious right will then try to overturn Obergefell, and reverse the right to same-sex marriage recognized by the Roberts court just a few years ago. This would have massive implications for marriages and the children of those marriages.
At least one Republican senator has even questioned the legitimancy of Loving v. Virginia. Sen. Mike Braun said interracial marriage ruling should be left to states:
U.S Senator Mike Braun (R-Ind) said that the U.S. Supreme Court was wrong to legalize interracial marriage in a ruling that stretches back to Loving v. Virginia in 1967.
According to Braun, the decision should not have been made by the country’s highest court and instead been left to individual states. Even though some states had made interracial marriage illegal prior to the Supreme Court ruling.
The Senator later tried to walk it back claiming he was misunderstood. Oh, the “states rights” argument of Viriginia in defense of its anti-miscegenation law was loud and clear, senator.
If you put these white Christian Nationalist radical Republicans in charge of the U.S. government, they could bring back the racial apartheid of Jim Crow segregation. The “super precedent” of Brown v. Board of Education may not even be safe from these extremist radical Republicans.
There is something Democrats can do right now if the obstructionist Vichy Democrats Sens. “Manchinema” will drop their defense of the Jim Crow relic Senate filibuster rule and stop empowering the anti-democracy radical Republicans. Back in February, the Senate rejects Democratic bill to codify abortion rights:
The legislation, the Women’s Health Protection Act, failed to garner the needed 60 votes to overcome a filibuster and would have fallen short of the 50 votes needed for passage after Sen. Joe Manchin, D-W.Va., joined Republicans in opposition.
The Women’s Health Protection Act has 48 Democratic cosponsors; the exceptions are Manchin and Sen. Bob Casey, D-Pa. Casey did vote to begin debate on the measure. Six senators did not vote.
Note: Once again, our prima donna diva Senator Kyrsten Sinema “was for it, before I was against it,” but wants you to give her credit for sponsoring a bill that she will not allow to pass because of her unprincipled defense of the Senate filibuster rule. (Note her coded language in the press release below: “Protections in the Senate” is code for the Senate filibuster rule. Is she really so naive as to believe that Republicans will not end the Senate filibuster rule the second they are back in control in order to enact a federal ban on abortion?)
Sinema’s statement defends the filibuster in its second paragraph, which means she’s coming out against codifying Roe by reforming the filibuster. https://t.co/dsOGEiD0ff
— Ryan Grim (@ryangrim) May 3, 2022
The legislation, which passed the House in September, represented the last best hope for supporters to see a law enacted that would ensure abortion remains legal in all 50 states.
This morning, President Biden called on Congress to codify Roe v. Wade into federal statutory law. Biden urges Congress to codify Roe v. Wade into law:
“We do not know whether this draft is genuine, or whether it reflects the final decision of the Court. With that critical caveat, I want to be clear on three points about the cases before the Supreme Court,” Biden said.
- “[M[y administration argued strongly before the Court in defense of Roe v. Wade … I believe that a woman’s right to choose is fundamental, Roe has been the law of the land for almost fifty years, and basic fairness and the stability of our law demand that it not be overturned.”
- Biden also pointed out that after the enactment of Texas’ six-week abortion ban and other similar laws, he directed the White House to prepare options for an Administration response to the continued attack on abortion and reproductive rights, under a variety of possible outcomes in the cases pending before the Supreme Court.”
- “At the federal level, we will need more pro-choice Senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law.“
“If the Court does overturn Roe, it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose. And it will fall on voters to elect pro-choice officials this November.”
Actually, Democrats can do this right now if the obstructionist Vichy Democrats Sens. “Manchinema” would reverse their stance on the Senate filibuster rule, Sen. Sinema in particular, who claims to be a women’s right advocate.
There are two Republican Senators who introduced their own bill to codify Roe v. Wade into federal statutory law. Senators Collins and Murkowski Introduce Bill to Codify Supreme Court Decisions on Reproductive Rights: Roe v. Wade and Planned Parenthood v. Casey:
U.S. Senators Susan Collins (R-ME) and Lisa Murkowski (R-AK) introduced legislation today that would codify the abortion rights established by Roe v. Wade (1973) and affirmed by Planned Parenthood v. Casey (1992). The Senators will also file their bill, titled the Reproductive Choice Act (RCA), as an amendment to the Women’s Health Protection Act (WHPA)[.]
“I support the abortion rights established by Roe v. Wade and affirmed by Planned Parenthood v. Casey. Our legislation would enshrine these important protections into law without undercutting statutes that have been in place for decades and provide basic conscience protections that are relied upon by health care providers who have religious objections to performing abortions,” said Senator Collins.
Susan Collins has the power to at least get Democrats to 50 votes on the Women's Health Protect Act ("codifying Roe") and has refused to do it https://t.co/CsYmHscHf6
— Irin Carmon (@irin) May 3, 2022
This bill is not as sweeping as the Women’s Health Protection Act, but it is a first step to codifying Roe v. Wade and Planned Parenthood v. Casey. The Senate should reconsider this bill, and Democrats should agree to go along with it because it gets us two Republican women senators, and if Sen. Sinema drops her unprincipled defense of the Senate filibuster rule, it could get us to 50 or 51 votes to overturn the Senate filibuster rule in defense of women’s reproductive rights. It puts the onus on these three women senators who claim to be advocates for women’s rights to do what is necessary: Sens. Collins, Murkowski and Sinema.
Democrats need to make this push right now and put the weight of the world on the shoulders of these three women senators to end the Senate filibuster in defense of women’s reproductve rights. They can get this done before the July 4th recess.