Yes, the Theocrats on the Court Really Are Going to Overturn “Roe v. Wade”

Yes, the Theocrats on the Court Really Are Going to Overturn “Roe v. Wade”

Yes, the Theocrats on the Court Really Are Going to Overturn Roe v. Wade

If you thought they were joking, you weren’t paying attention.


Forced-birth advocates are finally about to achieve something they’ve worked toward for decades. It now appears certain that the Supreme Court will revoke abortion rights and return pregnant people to the status of second-class citizens: mere incubators who lack the right to control the fate of their own bodies.

Politico is reporting that it has obtained a draft majority opinion in Dobbs v. Jackson Women’s Health, the case that deals with a 15-week abortion ban instituted by the state of Mississippi, a clear violation of Roe v. Wade. The opinion, written by Justice Samuel Alito and published in full by Politico, overturns both Roe v. Wade and Planned Parenthood v. Casey. “Roe was egregiously wrong from the start,” Alito writes in the leaked draft.

According to the report, four justices have signed on to Alito’s opinion: Clarence Thomas, Neil Gorsuch, alleged attempted rapist Brett Kavanaugh, and Amy Barrett. The three liberal justices are working on a dissent, and Chief Justice John Roberts is still trying to decide.

It’s highly unusual for a Supreme Court opinion to be leaked before it is released. It’s so unusual that nobody can say for certain how close this draft opinion is to being a reality. But here’s the most important thing to know: Alito was assigned to write the majority opinion, and given that Alito has been one of the greatest enemies of women’s rights since he joined the Supreme Court, it’s safe to say that five justices are comfortable, at least in theory, with the most extreme version of a decision supporting the Mississippi abortion ban. It’s possible that some of the language will change between the draft Politico has obtained and the final version the Supreme Court releases in a few weeks. But one doesn’t assign this opinion to Sam Alito unless the goal is to overturn Roe.

The only other question then is whether one of the five conservatives will blink in the face of public reaction. I do not think that is likely. Alito wrote it; Thomas is an extremophile every morning he wakes up; and Gorsuch, Kavanaugh, and Barrett were appointed specifically to do this by a president who promised that a commitment to overturn Roe v. Wade would be his litmus test for Supreme Court justices.

They won’t back down now. Anything short of a riot is unlikely to make the justices think twice about upending 50 years of judicial precedent. Even an actual riot will probably just make them go on a summer speaking tour where they try to rehabilitate their personal reputations.

Indeed, people should have expected exactly this outcome from the moment Donald Trump won the 2016 presidential election. Specifically, the 52 percent of white women who voted for Trump, along with the 52 percent of all men and a whopping 62 percent of white men, should have expected this. Some of them clearly wanted abortion to be overturned. But 59 percent of Americans believe abortion should be legal in most cases, including 57 percent of white Americans—so some of them clearly didn’t want it.

Did they think these conservative theocrats were joking? Conservatives have long promised to take away women’s rights. Now they are doing it. What did anyone think was going to happen when we let them control the Supreme Court?

There won’t be a riot, because most people have accepted living with a Christian fundamentalist Supreme Court. The fight to save abortion rights was lost slowly, over a long time, and then all at once. It was lost in 2016 when Justice Antonin Scalia died and Mitch McConnell held the seat open until a Republican could be installed in the White House. It was lost when The New York Times centered an entire presidential election involving the first woman nominated by one of the two major parties on her private e-mail server instead of her commitment to women’s rights. It was lost when Ruth Bader Ginsburg died in 2020 and McConnell was allowed to rush through her replacement. It was lost when Joe Biden took office and didn’t make reforming, expanding, or neutering the power of the conservative Supreme Court his number-one priority.

Conservatives have fought for control of the courts because they wanted to take away abortion rights. Why would any of the people, institutions, or constituencies who didn’t care enough to stop them before suddenly care now that conservatives are about to do what they’ve long promised to do?

In the draft opinion, Alito says that the court is “returning” the decision on abortion to the states—and the sad reality is that most people in our selfish, backward nation are going to be okay with that. There will be a loud initial expression of sadness, and then all but the fiercest of advocates will go back to their daily lives, secure in the knowledge that if they need an abortion, they will be able to get one in their state or to pay to travel to a state (or country) where the procedure is still legal. The people, mostly women, who have been on the front lines trying to protect reproductive rights will remain there trying to help pregnant people in a post-Roe world. But the new “allies” will only briefly be engaged by the ongoing injustice.

Don’t believe me? Well, folks, abortion services have been functionally illegal in Texas for months. Where has the paradigm-shifting public outcry been over the Texas bill that made that happen? Have people been taking to the streets daily? Has it been the dominant news story for months? Does it even make it onto polling lists as the “most important” issue to potential voters? No, no, and no. The Biden administration doesn’t even care anymore. Biden promised a “whole of government” response to Texas, and that amounted to one lawsuit (which was dismissed by the Supreme Court) and no further federal action. Biden even tries to avoid using the word “abortion” when he talks about reproductive rights.

People are fooling themselves if they think the reaction to overturning Roe v. Wade will be much different. People will be angry, for a time, and then they’ll move on. According to NPR, 21 states are poised to immediately ban or severely curtail abortion access should Roe v. Wade be overturned, but none of those states are New York or California. Coastal liberals will express outrage and then go to brunch. Later, we’ll get a GoFundMe to pay for bus tickets for women in Texas to get to California.

At some level, the leak of the Supreme Court opinion is the perfect microcosm for how the right to bodily autonomy was lost. Even with this leak, most people will not believe it is happening. They will hold out hope that somehow things will be pulled back from the brink. Nobody will go too crazy just yet: It is a “draft” opinion, after all! And by the time the draft opinion has become the real opinion, people will be used to it. The well-off will have had time to rationalize it away or to remember that they live in a safe state or have the resources to get to one. The desperate will become resigned to their fates, knowing that nobody is coming to help them.

This decision will come down and the states will pass their laws and some people will be super pissed… but most people will go back to complaining about gas prices. By the time we get all the way to the midterms, the conservatives who wanted this will send their conservative heroes back to Washington, while the liberals who don’t will be depressed and wondering why their party didn’t do more to prevent it from happening. Republicans won’t be punished for this but rewarded, while Democrats are punished for not fighting harder to stop it.

And that will be how it goes, at least until the bodies start showing up. See, a lot of people have forgotten that when you take away abortion rights, people who are pregnant and don’t want to be will still seek to terminate their pregnancies. They will try to do so, with sometimes horrific and tragic results.

Sam Alito cannot take away people’s reproductive choices; he can only take away their ability to make such choices safely and legally. One day, those who do nothing now will be forced to remember why this was such a big fight in the first place.

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Katrina vanden Heuvel
Editorial Director and Publisher, The Nation

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