Alito Draft Opinion Lays Groundwork To Repeal More Than Just Abortion Rights

Justice Alito's leaked draft opinion repealing Roe v. Wade outlines a legal framework to target same-sex marriage, contraceptive care, and other civil rights.
The U.S. Supreme Court Building in Washington. Jan. 25, 2012 (AP Photo/J. Scott Applewhite, File)

The U.S. Supreme Court Building in Washington. Jan. 25, 2012 (AP Photo/J. Scott Applewhite, File)

According to a monstrous leaked draft of a Supreme Court decision penned by Justice Samuel Alito, the right to a safe, legal abortion, or indeed any privacy or self-determination, does not exist in the Constitution of the United States because they’re “not deeply rooted in history.” This argument is made without a shred of irony between quoting customs from the literal Dark Ages in Europe to justify a ruling the American far-right has wanted and demanded for half a century now, a ruling according to which, your body is not yours, but subject to the whims of the state if its legislature so pleases.

We can certainly talk at length about the moral failings and legal horrors this decision would very quickly unleash unless the justices immediately reverse course, and while they’re all true, there is an ever greater underlying issue at hand here. By destroying Roe and working on a national abortion ban, while signaling that same-sex marriages and the right to contraception access are also now on the chopping block, Republicans are now undermining the legitimacy of American governance by openly defying the will and opinions of nearly three-quarters of the citizens. Meanwhile, Senators Josh Hawley (R-MO) and Ted Cruz (R-TX) are already claiming that the Supreme Court’s same-sex marriage ruling was “wrongly decided.”

Right now, the GOP’s mouthpieces are unified in screeching about an “insurrection against the Supreme Court” like wounded banshees with food poisoning, while Chief Justice John Roberts promised to investigate who the leaker was. The talking point is, of course, a typical buzzword salad by which the right currently communicates, and the leaker may have been an anti-choice clerk trying to set this decision in stone, as odd as it may sound at first glance. The organized focus on the fact that the decision was leaked across the right-wing ecosystem with the exact same verbiage is actually a tell according to several former GOP strategists.

While the final opinion due in the summer may have been significantly watered down, focused on surgically eviscerating Roe, and limiting the scope of the decision to avoid public backlash, this full-throated assault on even the notion of a right to bodily autonomy or medical privacy is now out in the open. The band-aid has been ripped off, giving the Court’s far-right majority the green light to start overturning the entire legal framework for the personal rights of anyone they see as less of a human than them. If the justices were afraid of the public’s fury, well, the public is already furious, so they might as well just go for it.

And the public has good reason to be furious. More than 7 in 10 of Americans are against overturning Roe. A similar number want same-sex marriage to remain the law of the land. Around 8 in 10 support access to contraception, which is about as close to unanimous as you can get on any issue today. Laws and rulings that enshrine privacy, bodily autonomy, and self-determination in one’s sex life and family planning have the same approval ratings as puppies in bowties and kittens playing with balls of yarn. Yet, Republicans are trying to take them away one by one with gleeful smiles.

In a befuddling, nonsensical development, rather than try to work with Democrats to lessen the blows of inflation, COVID, and high gas prices, the GOP decided that its best course of action is to become the totalitarian sex police while undermining any effort to fix legitimate problems. In a matter of a few years, the old jokes that Republicans wanted a government small enough to fit into your bedroom has become deadly serious, and the throngs of pundits who claimed this will never happen now have a grocery store worth of eggs to wipe off their faces.

Across red states, various abortion bans and trigger laws that outlaw the right to terminate a pregnancy even in cases of rape, incest, and life-or-death medical emergency will make the life of tens of millions of women a lot more complicated and a lot less free, with pregnancy now being a serious gamble. Thousands will doubtlessly die as a result as doctors refuse to help them in legitimate crises, fearing losing their licenses and jail time if they can’t satisfy the psychotic whims of a wild-eyed fanatic spewing fire and brimstone from a bench.

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Alright, you might say, that’s horrible, but blue states are safe, right? Yeah, about that. There are draft bills outlawing abortion nationwide while Senator Marsha Blackburn (R-Gilead) asks if maybe the Supreme Court should backtrack on the right to contraception and Senator Mark Braun (R-IN, 1952) mused whether Loving, the decision which allowed mixed-race marriages, should’ve been handled by the states instead. The dog whistles have been cast aside in favor of blaring klaxons. The Republican war on sex and privacy has arrived.

And yet again, Americans strongly support the very things the GOP is now hellbent on going after across the nation, along with many other wildly popular things they’ve been sabotaging for decades now. In any sane and civilized society, giving more people more rights that are favored by the public by margins of at least 40 to 60 points means the subject is settled and off-limits. For a handful of unelected officials with lifetime appointments to thumb their nose at their fellow citizens and declare your body to be property of the state as Republican politicians gleefully turn practicing those former rights into criminal offenses, then pick their voters to avoid paying a political price, is unsustainable at best and dangerous at worst.

Gridlock is something Americans are more or less used to, and the GOP has largely succeeded in making the federal government impotent. Voters appear to be able to tolerate it while not that much about their day to day lives change, even as things get much worse for certain minority groups thanks to less-than-ideal societal dynamics Republicans desperately don’t want covered in history classes these days as not to make little Harry or Sally feel bad, much less prompt them to decide that they should be kind to “those people” and have genuine empathy for all their fellow citizens. But this is very different.

These are wildly popular rights nearly all of the civilized world takes for granted being stripped away by edict and through very openly rigged state elections in which Democratic wins at the polls somehow become GOP near-supermajorities in the legislature. Numerous democracy scholars noted many disturbing parallels with backsliding democracies like Turkey, Hungary, and Russia, while Fox News anchors nearly orgasm from joy live on air at the thought of America becoming a modern neo-fascist autocracy run by our evil elders. However, the United States is not your typical backsliding democracy.

As someone who grew up in the former USSR and is very familiar with Eastern Europe, as well as a few other parts of the world, I can tell you that there’s no country like America. There really is something profoundly different about it, and its ability to bounce back from the brink where any other nation would descend into generations of hopeless darkness. The symptoms of the coming far-right gerontocratic autocracy are there, but it lacks the fuel to ignite and consume the country without serious consequences.

Hungary and Russia have rarely experimented with actual democracy and the specter of their autocratic pasts have always loomed large in their governments and societies. They have state TV channels watched by the majority of the population and national systems which compliantly implement orders from above. America has fifty nation states engaged in a constant tug and pull between each other and the federal government, and its media diet is highly fragmented. Fox News may be desperately trying to become the mouthpiece of an authoritarian state, but it has equally influential competitors, and its hyper-partisan viewership means it’s almost always preaching to its tinfoil choir.

Likewise, while in Russia, Turkey, and Hungary, freedom and rights were very nice thoughts by some very nice people the public would love to see enacted but rarely has, Americans are very serious about both. Their history features numerous large, angry riots after politicians went too far, demanded too much, or cracked down too hard. And as the summer of 2020 has shown us, that tradition is alive and well. If Republicans really want to turn themselves into a sex police straight out of a cyberpunk dystopia, it’s not difficult to image full scale uprisings when the nation has had enough.

Even under authoritarian regimes just like ones in the wet dreams of Republican zealots, similar maneuvers didn’t go over well. Trump-styled Romanian dictator Nicolae Ceausescu banned abortion between 1966 and 1989 with devastating results. Why was the ban lifted? Ceausescu effectively ran the country into the ground, and after nationwide riots following his call to shoot protesting civilians, he quickly found himself out of power, and after a short trip to a relevant court, out of life. Can you imagine Americans suffering totalitarian policing of their bodies for 23 years after half a century spent breaking free of it? Because I sure can’t.

It’s also entirely possible that should a nationwide abortion, or contraception, or same sex and mixed race marriage ban squeak out of Congress and get signed by a Republican president who would will once again almost certainly lose the popular vote, a blue state like California would just refuse to enforce it. What will their argument be? A government led by someone who lacks majority support, backed by a gerrymandered legislature, and advised by a group which represents less than a third of the population yet controls the chamber, cannot possibly think itself and its widely reviled edicts as legitimate.

If the feds respond by sending in US Marshals to enforce the law, they could expect resistance from state agencies, law enforcement, or even the state national guard, followed by massive riots. Even the biggest non-voting shrugee in America would be livid at what would effectively be an invading army to rip apart families, lock couples in chastity cages, and ransack pharmacies for “contraband birth control.” And this is not to mention how enraged conservatives watching “limited government” turn into totalitarian thugs will become, and how quickly they’ll join in the protests since this is their exact nightmare.

If you think this scenario is impossible in the near future and that there’s no way the GOP could possibly come after contraception, same sex and interracial couples, or would ever try ramming through a nationwide forced birth law, I’m not qualified to help with that level of denialism. This agenda isn’t even being telegraphed. It’s been presented in black and white, and any “walking back” done by the lawmakers and activists pitching their vision of a chaste American theocracy is followed by nods, winks, and obvious lies as we can see by the draft decision. The modern GOP are good faith political actors the same way Charles Ponzi is a trusted financial adviser.

But while Republicans may be gloating now, they’re playing with the political equivalent of a nuclear warhead. It may be simple looking on the outside but incredibly complex and finicky within. It’s very difficult to ignite and operates in seemingly befuddling ways when you study the details, but when it goes off, the results are devastating for the overconfident tinkerer who is arrogantly sure they have it under complete control. For the last six years, they’ve hammered on it with wild abandon, but now they’ve finally hit the firing set and we’ll know very shortly if the pulse reached the detonators.

Given that we’ll be listening to the details of their attempt to stage a coup right as they try to strip us of bodily autonomy right as the midterms approach, it would only be appropriate if the party of aspiring Ceausescus, Orbans, and Putins was finally and properly rebuked by the citizens of the country by far best suited to repel, defang, and frustrate authoritarians. The GOP can rejoin the political process when its lawmakers and officials can behave like members of a free and civilized society, and if their leadership has anything of use left in their skulls, they’ll realize that will be the best possible outcome for their party.

According to Twitter and an avalanche of op-eds in liberal publications, America may as well be lost, the fight is almost over, and the bad guys are on the verge of total victory. But the fight has not even begun as too many were completely checked out, barely paying attention to current events. Awake, angry, and motivated Americans are one of the most terrifying political forces in history, which is why the GOP is so busy convincing them that their vote doesn’t matter, that every politician is the same, and that there’s nothing they can do about any of it.

But this is not the nation’s first or even third brush with delusional wannabe autocrats seemingly poised for a total takeover. Eventually, they all touch that third rail, and a furious citizenry takes to the streets and to the polls to cleanse the nation of their influence for generations. And they can do it again. All they need is a push in the right direction, and this leak may have just provided it. Our job now is to keep the fire lit and remind Americans how little they care for autocrats and their foot soldiers and fan clubs.

Opinion // Abortion / Authoritarianism / Democracy / Republican Party / Supreme Court / Women