New battle over women’s reproductive rights causes further turbulence in stormy US political seas

An abortion rights proponent participates during an ‘emergency rally’ after a leaked draft opinion by the US Supreme Court suggested the nation's highest court would soon overturn the landmark Roe v Wade decision, in Atlanta, Georgia, US on 3 May 2022. (Photo: EPA-EFE / Erick S Lesser)

By J Brooks Spector

5 May 2022

If the war in Ukraine was not enough to roil the political waters, the US is now going into a major fight over abortion. Yet again.

Just a few months ago, the issues on the boil — and threatening to overflow all over the US political kitchen — were things like those remaining but annoying restrictions plaguing the nation from efforts to contain Covid-19.

This was coupled with the popular sense that the economy remained in the doldrums, at best. Still, anger and embarrassment over the country’s precipitous withdrawal of its last forces from Afghanistan were fading from view — unless one was directly connected to the plight of Afghan refugees or was concerned by the return of a regime eager to pummel that unhappy nation, once again, back to the Middle Ages.

Gradually, however, public concern has been shifting towards concern over the reality or the idea of increasing immigration from Latin America, as well as from other nations, by way of the southern border. A degree of confusion over immigration control enforcement policies only heightened that disquiet. That gave critics of the president yet one more thing to whine about, even as the economy was making a massive turnaround — the lowest unemployment in years and more jobs than applicants, along with a major spike in the number of new jobs being created.

However, even there, worrying increases over sharp price inflation across a range of sectors — notably petrol and diesel prices — were sapping the sparkle from those good bits of economic news. Some believe the Federal Reserve Bank’s significant uptick in the prime interest rate the other day may well have the desired effect of dampening inflation (although raising the cost of credit), thus taking that issue increasingly off the table by November.

Midterm election fears

With all this in mind, many Democratic Party leaders (at the state and national levels) are beginning to have anguished, sleepless nights over the possibility that their Republican opponents are poised to make major wins in the upcoming midterm elections, gaining control of at least one, or even both houses of Congress. If that happens in November, any real chances for the passage of a Biden legislative agenda, come 2023, would virtually vanish.

But now, two other events have taken up much of the space for public discussion in the US — significantly displacing much of the attention from that whole other list of things, things the Biden administration can brag about as well as those the president and his team (and the whole posse of elites) can be blamed for.

These two questions are the war in Ukraine and the anonymous leak of an early draft opinion written by the very conservative Supreme Court member Justice Samuel Alito. His draft is for a Supreme Court ruling that, presumably, would overturn the nearly 50-year-old decision that effectively set the right to abortion and women’s reproductive rights more generally as the law of the land. This issue is casting an unexpected shadow over primary elections already beginning for the midterm cycle, but there is no clear sense yet what the effects will be once the actual ruling is issued.

As far as the war in Ukraine goes, it had been foreshadowed for months by threats from Vladimir Putin that Ukraine was an illegitimate government of neo-Nazis, drug dealers, thugs, thieves and other miscellaneous sinners. And in any case, the country wasn’t even a real nation and there was not an actual Ukrainian ethnicity, it was just a wayward part of the new Russia that Putin was building as he re-envisioned the old tsarist empire as a white, Christian, global saviour of the world.

Somewhere in all that bluster was the idea that Nato and the US were endlessly provoking a gentle, blushing Russia through murmurings about the alliance’s onward expansion, tightening the vice around Russia’s oxygen supply. And about those vast Russian military exercises right next to the Ukrainian border, the world should be reassured by Russian Foreign Minister Sergey Lavrov’s unctuous words there was no chance of an actual invasion. None. Until there was, of course.

Seemingly caught off guard at first, the Biden administration soon enough responded by the effective rallying of Nato and other key nations to put into action a growing round of sanctions and financial punishments against Russia, and an increasingly vigorous military supply effort that helped the Ukrainians halt a cumbersome but massive Russian advance on the capital of Kyiv.

That supply chain has, so far, largely held off major Russian gains elsewhere, although at the cost of devastating aerial attacks on the country’s cities that seem to have targeted civilians and their homes, schools and hospitals, as well as rail transport and airports. For Ukraine, the cost of holding off the Russian assault has been enormous.

For the Biden administration, this rallying effort has been politically successful as aid packages that require congressional support are being enthusiastically backed, and public opinion in the US to support Ukraine in its time of agony remains strong, with indications that the increased costs of petrol or food will need to be borne — at least initially. But those initially popular, strong foreign policy stances (or even widely acknowledged, successful ones) can easily recede in the public mind as soon as the costs become tangible while the benefits remain largely abstract or off in the future somewhere. Political capital is thus expended for little return.

Meanwhile, as eyes were on Eastern Europe (besides those focusing on the rise in inflation or the cost of filling up the family car with fuel), Politico published an almost unprecedented leak of a preliminary draft opinion from the Supreme Court of a dispute that has raged through the US court system and had recently been reheard by the Supreme Court. The draft had been written by Associate Justice Samuel Alito (with his clerks — that small cadre of intellectually intense, young law school graduates who support a justice’s research).

Roe vs Wade

roe vs wade supreme court Protesters in front of the Supreme Court in Washington, DC on 3 May 2022. According to leaked documents, the Supreme Court could overturn Roe v. Wade, the landmark ruling that for nearly 50 years has guaranteed a constitutional right to abortion. (Photo: EPA-EFE / Will Oliver)

Alito is probably the most conservative member of the court, and his draft was presumably the first version of an opinion that was designed to trigger serious debate among the justices over just how much of the Roe v Wade protection of a woman’s right to have an abortion should be left standing. That original ruling was issued in 1973 after the case had worked its way through the national court system. The ruling did away with restrictions or prohibitions that, over the years, remained in many states.

Usually, a draft is designed to provoke discussion among the justices before they finally reach a verdict — and as the justices coalesce around their respective positions. Rulings are usually only issued months after the actual arguments before the Supreme Court take place.

The operative point is that these discussions and debates take place in private as issues are thrashed out and as further drafts are produced for one or another position. In some cases, the debate is vigorously pursued until a full consensus is reached, as happened with influential judgments like Brown v Board of Education, during Earl Warren’s tenure as Chief Justice.

In other cases, the Bench may be split 5-4 or 6-3 and dissents are written that, while they don’t influence the matter at hand, become legendary in their own right. They can end up foreshadowing a future decision in a case similar to the one where that dissent was on the losing side. In other cases, while a majority holds for one position, some justices may have different reasons for doing so, holding with the majority but offering their own opinion on their vote.

Roe v Wade had marked a major sea change in women’s rights (and helped set the course for changes in public policy and court decisions on LGBTQI rights as well) over the succeeding near-half century. But it also triggered a real fightback. That drew on support from religious groups who held strong doctrinal views on abortion (ie, a life — and a soul — begins at conception) as well as on a range of other traditional values, and support from an increasingly politicised (and politically engaged) evangelical, fundamentalist sector of the population.

Such people saw this revolution in reproductive rights as one more baleful aspect of a left-liberal elite’s obsession with remaking the country — and taking it away from and disparaging the country’s God-fearing, hard-working, respectful citizens. One of the newest elements of that set of issues has become control over books in local public school classes and libraries that dared stock or use books that did not hew to the cosseted views of the social activist/conservative/populist movement.

But beyond almost any other issue, action against Roe v Wade became an archetypal single-issue political effort that channelled enormous energy and participation on the part of its opponents, turning an anti-Roe v Wade stance into a litmus test for political candidates in many jurisdictions.

Over the years, political action groups aligned to such values have systematically gained greater control over various state legislatures and governorships, as well as being in sync with the Donald Trump wing (or cult) of the Republican Party, despite the fact that on the face of it, given Trump’s own lifestyle and personal history he might well be the last person in the country who religiously devout individuals should champion. Now they are poised to see the victory of a 180-degree U-turn on abortion in the impending Supreme Court decision.

One challenge for Roe v Wade proponents and the reproductive rights it guaranteed has been that these rights were not specifically enacted by Congress, or by the states in a similar manner. Instead, its critics, as exemplified in Justice Alito’s text, argued this protection was a flawed court decision derived from a newly asserted constitutional right to privacy that was, in turn, unduly extended to total control over women’s bodies by the women — but at the expense of unborn children. This was qualitatively different from protections of freedom of religion or speech, or from unlawful search and seizure, explicitly guaranteed in the Constitution.

This logic argued that the error of this newfound right could be fixed by the same court that had made the mistake in the first case. For proponents of reproductive rights, getting a legislative solution would probably have been preferable and more unassailable, save for the fact that opponents in southern, midwestern and Rocky Mountain states were already gaining control in state legislatures. This can be seen in those so-called trigger laws being passed whereby much stricter restrictions on such procedures would kick in the moment Roe v Wade was reversed by the apex court.

Storm of protest

us roe vs wade An abortion rights proponent participates during an ‘emergency rally’ after a leaked draft opinion by the US Supreme Court suggested the nation's highest court would soon overturn the landmark Roe v Wade decision, in Atlanta, Georgia, US on 3 May 2022. (Photo: EPA-EFE / Erick S Lesser)

However, the release of the draft opinion has generated an absolute firestorm among civil rights groups, many medical and public health groups and law-related NGOs, Democratic Party elected officials, and, of course, millions of women. Campaigns are being planned, demonstrations are already taking place, and more are being organised, and the president and vice-president both have issued several strong statements opposing the likely decision. This pending decision is set to have serious but unclear repercussions on the mid-term election cycle as candidates — most especially Republicans — try to finesse their stands on the whole thing.

In an attempt to parse out this still-evolving question — and remember, the ruling has yet to be issued and won’t be for perhaps another month or more — The Washington Post analysed the tumult this way: “Every January, congressional Republicans have marked the anniversary of the 1973 Supreme Court decision in Roe v. Wade with a political ritual.

“They host constituents joining the annual March for Life and often participate themselves. Many give speeches on the House and Senate floors decrying the court’s establishment of a constitutional right to abortion. And, if they are in the majority, GOP leaders hold votes on bills that would further restrict that right — heralding a day when Roe might be rescinded entirely.

“That day now appears to be at hand. An extraordinary leak of a draft opinion this week indicated that the Supreme Court may be on the cusp of overturning Roe and probably triggering new restrictions on abortion in some two dozen states. Yet few Republicans have openly celebrated, even though Justice Samuel A. Alito Jr.’s opinion would, if adopted by the court, fulfill what is perhaps the conservative movement’s single most enduring policy goal.

“Instead, many GOP lawmakers — including Senate Minority Leader Mitch McConnell of Kentucky, an architect of a conservative revolution in the federal courts — said they were more concerned about the leak and its implications than the substance of the opinion. Many ascribed the subdued reaction to mere wariness over celebrating a decision that has not actually been handed down.

“For months, the GOP has been on the rhetorical offensive against President Biden and fellow Democrats — hammering them on the Afghanistan withdrawal, on increasing homicide rates, on a chaotic southern border and on seemingly ever-rising inflation. But, unlike with those issues, public opinion runs sharply against the GOP on abortion, suggesting the party could pay a significant political price if Roe is overturned. A new Washington Post-ABC News poll found 54 percent of Americans want the ruling upheld vs. 28 percent wanting it overturned. [Italics added].”

It is possible this long-sought quest to destroy Roe v Wade may have perverse effects on Republican candidates, drawing in women and men who strongly support the status quo, and working against those legislators who have been some of its principal opponents.

It is important to note that even if the ruling does happen the way people like Mitch McConnell or Justice Scalia want, most of the country’s most populous states such as California, New York, Illinois, and the rest of the northeast and Pacific West (but not Texas or Florida) already have legislatively protected reproductive rights guarantees. But women in the other parts of the country will then be faced with more difficult and potentially dangerous choices.

While the affluent can obviously travel to a nearby state for their procedure, the poorer, the more vulnerable and the less educated may be tempted or feel pressed to turn to methods that had previously led to unnecessary deaths or injuries.

What will be clear, regardless of the political consequences of the reversal of a 49-year-old “settled precedent”, is that the country will become more divided on the issue and its consequences than now — just as the electoral cycle reaches its height. DM

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Midterm election fears

Roe vs Wade

Storm of protest