By David M. Greenwald
Washington, DC – While observers long believed that with a 6-3 conservative majority on the Court, the US Supreme Court could overturn the seminal case, Roe v. Wade, a leak of a draft by Politico Monday night was a political tsunami that at least has the potential to change the entire dynamics of the coming election.
“The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment,” the draft dated February 10 said. “That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’”
The reaction showed that the issue could be a potential tidal wave in the political landscape.
Governor Newsom, Senate Leader Toni Atkins, Speaker Anthony Rendon: “California will not stand idly by as women across America are stripped of their rights and the progress so many have fought for gets erased. We will fight. California is proposing an amendment to enshrine the right to choose in our state constitution so that there is no doubt as to the right to abortion in this state. We know we can’t trust the Supreme Court to protect reproductive rights, so California will build a firewall around this right in our state constitution. Women will remain protected here.”
Gavin Newsom: “This draft opinion is an appalling attack on the rights of women across this country and if it stands, it will destroy lives and put countless women in danger. It will be the end of fundamental constitutional rights that American women have had for nearly 50 years. This is not an isolated incident, and it is not the end. We have a Supreme Court that does not value the rights of women, and a political minority that will stop at nothing to take those rights away.”
Rick Hasen, University of California, Irvine: “One thing to keep in mind here: some may say this SCOTUS leak benefits those who oppose overturning Roe. But it actually helps the majority that overturns by (1) deflecting commentary to breach of court secrecy norms and (2) lessening the blow by setting expectations.” (Twitter)
Laurence Tribe, Harvard Law School: “If the Alito opinion savaging Roe and Casey ends up being the Opinion of the Court, it will unravel many basic rights beyond abortion and will go further than returning the issue to the states: It will enable a GOP Congress to enact a nationwide ban on abortion and contraception.” (Twitter)
Daniel Epps, Washington University at St. Louis School of Law: “My guess is there’s about to be a serious inquisition at the Court as the Chief tries to figure out who leaked. Worth noting, though, that draft majority opinions are circulated before Justices have 100% agreed to what they contain. There would have been an initial vote but a lot could be uncertain until much later in the process. One thing that’s weird is that the draft is dated from February. That suggests it may have been the first circulated draft. Surely there have been multiple new versions of the opinion circulated in the building since Feb. So why is the February version leaking now?” (Twitter)
Steve Vladeck, University of Texas School of Law: “This is an earthquake—for what it portends for the future not only of Roe, but of *all* implied fundamental rights, and for the stunning breach of the court’s norms of confidentiality. And whatever you think of the leak, the former has *everything* to do with the latter.” (Twitter)
Anthony Romero, Executive Director, American Civil Liberties Union: “If the Supreme Court does indeed issue a majority opinion along the lines of the leaked draft authored by Justice Alito, the shift in the tectonic plates of abortion rights will be as significant as any opinion the Court has ever issued. It would deprive half the nation of a fundamental, constitutional right that has been enjoyed by millions of women for over 50 years. The breach in protocol at the Court pales in comparison to the breach in constitutional freedoms that the Court is charged with upholding. However the decision ultimately comes down, the ACLU will never stop fighting for a person’s right to choose when and if to have a child.” (Statement)
Jonathan Turley, George Washington University Law School: “The most likely motivation is obviously to pressure the court and push the legislation in Congress on a federal abortion law before the midterm elections. It will also likely renew the call for court packing.” (Twitter)
California Legislative Women’s Caucus Chair Assemblywoman Cristina Garcia (D-Bell Gardens) and Vice Chair Senator Nancy Skinner (D-Berkeley):
“If SCOTUS adopts this deplorable draft decision and overturns Roe, it will not stop abortions but rather lead to unsafe and deadly abortions, especially for our most marginalized communities. Lack of access across the United States disproportionately affects communities of color, low-income communities, trans, and other marginalized communities. This fight is not just about a person’s right to control their own destiny, but about ensuring our most vulnerable community members have equal access. It’s about equity. This will be the first time my generation will lose a fundamental right — the right to choose, especially if you’re Black, Brown, LGBTQ, immigrant, or low-income,” said Assemblymember Garcia.
“We saw it coming. California is prepared to be a refuge state for women here and across this nation. The Legislative Women’s Caucus stands with Senate Pro Tem Atkins, Assembly Speaker Rendon and Governor Newsom in support of a constitutional amendment to enshrine reproductive rights for all in California. We will be the national beacon for reproductive justice,” Assemblymember Garcia added.
“Unlike women before me, I grew up without having to face the choice of a back-alley abortion. I am outraged to learn that what we have feared is all too likely to come true: Millions of Americans will lose their legal right to make the very personal choice of whether to continue a pregnancy, no matter what the circumstance. Facing an unwanted and unplanned for pregnancy, I had my abortion legally and in a safe medical setting. If this leak is correct and Roe v. Wade is overturned, the Supreme Court will not prevent abortions, instead they will unleash unsafe and often deadly abortions. Decades of advocacy, hard work, and sacrifices made for the freedom to choose what happens to our own bodies will be completely undone. The Legislative Women’s Caucus and California will vigorously uphold reproductive freedom for all who live here and who come here,” said Senator Skinner.
Senator Scott Wiener: “California unequivocally stands for the right to an abortion, no matter what the right-wing zealots on the Supreme Court say. We will fight hard to expand abortion access, here and in other states.”
California Young Democrats President Diane Le and CYD Womxn’s Caucus chair Megan Imperial:
“Today’s news of the leaked plans by the Supreme Court to overturn Roe v. Wade is yet another reminder of the atrocious and sickening reality that is the GOP and their agenda. Make no mistake — striking down abortion rights is neither popular, logical, or brave. It is simply evil. Conservatives have plotted for years to overturn rights that benefit women, birthing people, survivors, and disenfranchised communities. Today reminds us that we are always one decision away from losing our rights, and why we must never loosen our grip in the fight for equality, justice, and the right to our bodies.
“We as Californians are fortunate to live in a state where many of our legislators are champions of reproductive freedoms and rights. We know that because of the leadership of our Democratic majority in California, access to abortion and reproductive freedoms is currently safe and legal in our state. We cannot and will not rest easy until we vote out every and any legislator who undermines women’s and birthing people’s rights, and we will not stop until Congress acts to once again protect women’s and birthing people’s right to their own bodies.
“When the right to our own bodies is under attack, apathy cannot be an option. So we choose to show our force and speak up. This Midterms, we will mobilize like never before, we will protect our Democratic majority in Congress, we will fight for change, and we will not stop until Roe v. Wade is codified into law.”