The Conservatives Aren’t Just Ending Roe—They’re Delighting in It
This is the work of the Supreme Court’s emboldened, radical majority.
Something fundamental about the Supreme Court has changed in recent months. It is not simply that the Court has a conservative supermajority, although that is true enough. What is really striking is just how emboldened that conservative supermajority is—how willing to take on a number of deeply divisive culture-war issues; how blasé about making major decisions via the Court’s shadow docket; how open to making rapid, profound changes to long-standing precedent. Last night, when Politico released a leaked February draft of an opinion by Justice Samuel Alito that would reverse Roe v. Wade, the landmark decision recognizing the right to choose abortion, the public got its most arresting taste thus far of just what this conservative bloc could do.
This morning the Supreme Court confirmed the authenticity of Politico’s draft. Even so, there are reasons to proceed with caution: A final decision is still not expected until June, and the language or even the conclusion of the opinion could yet change. But even with that caveat in mind, the draft is evidence of the brazenness of this majority—all in line with what many expected after oral argument in the Dobbs case in December.
This draft reads like the work of a conservative majority driven by an absolute conviction that Roe v. Wade is egregiously, historically wrong—comparable to support for racial segregation. The draft claims that the justices cannot predict the consequences of their actions and, even if such a prediction were possible, shouldn’t care what the public thinks anyway. The job of the Supreme Court, Alito suggests in the draft, is to say what the law is, not to care about what the people think, much less what the people think the Constitution means. (Politico is reporting that four other conservative justices—Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—are likely to join Alito’s opinion, though that may change between now and when the final decision comes down.)
That the conservative majority could make such an argument—that it could believe such an idea—is a product of America’s grievous polarization. This majority knows that it will be celebrated by the conservative legal movement and the leaders of the Republican Party.
The draft, like generations of anti-abortion-rights advocacy, stresses that Roe distorted much of American jurisprudence, not just the rules on abortion. It rehabilitates the 19th-century physicians who sought to criminalize abortion, suggesting that they were motivated by an interest in protecting innocent fetal life rather than by nativism or racism. One footnote suggests that those who fought for the right to choose abortion were motivated by racism—and argues that Roe produced a world in which fewer children of color were born. It emphasizes that abortion is different from any other constitutional right because it involves the taking of a life. These are arguments that would be made by justices who are not merely assuring the demise of abortion rights but delighting in it.
When Donald Trump was elected in 2016, the unraveling of Roe v. Wade seemed likely. When Kavanaugh replaced Anthony Kennedy, a longtime swing vote in abortion cases, the odds of a reversal seemed even higher. And when Barrett replaced Ruth Bader Ginsburg, creating a bulletproof six-justice conservative majority, the end of abortion rights seemed imminent.
But even so, the speed with which this conservative majority is moving to reverse Roe is astonishing. The Court did not have to take this case—the lower courts had not split on the constitutionality of 15-week bans. The anti-abortion-rights movement had not invested much in such laws, which did not make for an especially strong case against abortion rights. The conservative majority is not going to sit around and wait; nothing about this seems particularly hard for these justices. No soul-searching was required.
This is the kind of draft that comes from that sense of certainty. It suggests that there can be no right to abortion because states were criminalizing abortion when the relevant constitutional provision, the Fourteenth Amendment, was ratified. Though the draft stresses that other precedents are not on the chopping block, it’s unclear why that would be: The same logic applies to same-sex intimacy and contraception, which were being outlawed at roughly the same time.
The draft concludes that this issue should be decided by voters, not justices, but—and this is subtle but quite significant—it also distinguishes abortion from other rights the Court has protected by stressing the value of fetal life. If this language is in the final opinion, it will be read by anti-abortion-rights leaders as an invitation to return to the Court and ask the conservative justices to hold that the Constitution recognizes the personhood of the fetus—and that abortion is unconstitutional in blue as well as red states. If the Court goes that route, the issue will be far, far out of the hands of voters in all states for a very long time to come.
This draft accuses the Roe Court not just of being wrong but of lacking empathy—of moving too fast, with too little justification, and further inflaming the nation’s abortion politics. This is something said by many who do not understand the nation’s conflict on abortion, and in particular by those who do not want to own up to their part in the ugliness of our conflict.
We should count the Court’s majority in this camp. This is more than a little ironic: The Court’s conservatives may scold their predecessors for unnecessarily dividing the nation on abortion, but they are not above doing the same thing themselves.
Listen to the writers Molly Jong-Fast, Mary Ziegler, and David French on Radio Atlantic: