Senate Minority Leader Mitch McConnell is having a great week, and that means this is going to be an unusually bleak and depressing column.
I’m writing this column on Tuesday, May 3, the day after a draft majority opinion leaked from the Supreme Court. The draft opinion, written by Justice Samuel Alito, is nothing less than a fiery repudiation and overruling of Roe v. Wade.
This development should not come as a surprise. It’s the entire reason the Supreme Court is currently stacked with archconservatives. It’s the reason then-Majority Leader Mitch McConnell said that President Barack Obama could not appoint a Supreme Court Justice during the last year of his term, then hypocritically spun on his heels and rammed Amy Coney Barrett into the Supreme Court during President Donald Trump’s last year before Ruth Bader Ginsburg’s body was even cold. The overruling of Roe v. Wade is not a bug of McConnell’s farce of a Supreme Court, it’s the selling point.
I’m not going to write a column arguing about abortion. There’s no point in it. Instead, this is a column about what overturning Roe v. Wade is going to do immediately, and what it’s going to do over the coming weeks and months.
First off, here’s what Roe v. Wade actually is: in 1973, the Supreme Court ruled 7-2 that the Due Process Clause of the 14th Amendment provides a “right to privacy” that protects a pregnant woman’s right to choose whether to have an abortion. We’re going to come back to this point shortly.
But first, what happens immediately when Roe v. Wade is overturned?
At that point, the legality of abortion is up to each state. There are 18 states that have so-called “trigger laws” to ban abortion if Roe v. Wade is overturned, and these states contain 58 percent of all U.S. women of reproductive age. They are Texas, Arizona, Oklahoma, Louisiana, Mississippi, Alabama, Utah, Arkansas, Tennessee, Missouri, Kentucky, West Virginia, Idaho, Wyoming, Wisconsin, Michigan, and North and South Dakota.
Realistically, this means that women from those states can still receive abortions, as long as they have the money and means to visit clinics in neighboring states (for however long those remain open). For example, when Texas instituted an abortion ban that lasted about six weeks last year, Planned Parenthood clinics in neighboring states saw an 800 percent increase in abortion patients. Those too poor or disadvantaged to leave their state will be stuck, however.
And here’s a fact: a lot of women are going to die. Some will die from receiving abortions in illegal back alley clinics, but plenty of women will die in childbirth. Did you know that the United States has the highest maternal mortality rate of any developed country? Worse still, the rate is rising every day. There are only two other countries where the maternal mortality rate is rising: Afghanistan and Sudan.
And of course, many women will die because their pregnancies were dangerous and non-viable, but they either won’t have access to medical care that would determine that outcome or they’ll be stuck in a state with draconian laws that prevent abortion even if childbirth will kill both mother and child. Think that sounds crazy? Just this past March, a Missouri legislator introduced a bill that would make it illegal to abort an ectopic pregnancy, which is by definition non-viable.
Sure, the wave of death will be bad, but that’s just the beginning. Let’s go back to the 14th Amendment.
Adopted in 1868, the 14th Amendment contains the Due Process Clause, which prohibits the arbitrary deprivation of “life, liberty, or property” by the government except as authorized by law.
The 1973 Roe v. Wade ruling absolutely hinges on the Due Process Clause, but in his leaked opinion, Alito states that the 14th Amendment only guarantees rights that are “deeply rooted in this Nation’s history and tradition.”
So, what are some other Supreme Court rulings that could now be struck down based on this interpretation of the 14th Amendment? How about Griswold v. Connecticut from 1965, in which the Supreme Court ruled that married couples have the liberty to buy and use contraceptives without government restriction? This ruling was extended by further Supreme Court decisions, such as Eisenstadt v. Baird, which gave the right to birth control to unmarried couples. Based on Alito’s new opinion, the Supreme Court could literally decide that you can’t buy contraceptives without a prescription from your doctor. When combined with an overturned Roe v. Wade, we can safely expect an absolute explosion in teen pregnancies and other unwanted pregnancies.
Here’s another past Supreme Court ruling that Alito just threw into question: Obergefell v. Hodges, which guaranteed same-sex couples the right to marry. Personally, I expect this one to go fast, so if there are any same-sex couples reading this who are considering marriage, I recommend pulling the trigger this month while you still can.
I am neither joking nor exaggerating.
And here’s another past Supreme Court decision that hinged on the 14th Amendment: Loving v. Virginia, which ruled that laws banning interracial marriage are unconstitutional. Obergefell v. Hodges cited Loving v. Virginia as precedent, so if one topples, there’s absolutely no reason the other couldn’t go the same way.
It’s tempting to say that I’m alarmist, that I’m exaggerating the threat of this impending Supreme Court decision. I wish that were the case. I’d love to be wrong. But as Maya Angelou famously said, “When people show you who they are, believe them the first time.”
I’ve seen enough of Mitch McConnell and his ilk to know them well. They’re dead-set on steering this country not merely decades into the past, but centuries, and about 30 percent of the country will cheer them on while the rest of the developed world watches in horror and confusion as the American experiment ends with a pathetic whimper and the shining lights of the “city on a hill” wink out one by one.
Again, I hope I’m wrong. But I guess we’ll all find out soon enough.
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