Will Supremes come after other rights next?

When I learned of an early draft of Supreme Court Justice Samuel Alito’s opinion on the future of abortion as a constitutional right surfacing on Politico last week, I balked as a skeptical journalist out of concern for its being a fake. However, when I finally chanced a look at the first 20 or so pages, I quickly recognized Alito's personality in the writing – snarky, intolerant, pugnacious and, whatever else, remarkably straightforward.

In short, genuine to the letter, something Chief Justice John Roberts confirmed the following day, even as Roberts stressed that the written opinion was a draft, certain to be tweaked and revised by concurring justices of which there is almost certainly an easy majority. However the opinion is ultimately refined, the outcome seems sure in this forceful, uncompromising text: The high court’s long-anticipated reassessment of Roe v. Wade is about to strip away federal protections that almost a half-century ago invalidated Texas law criminalizing abortion and gleaned from the almighty Fourteenth Amendment a right to privacy that insulates a woman’s choice of whether to pursue an abortion.

Thereafter, this right will be left to the states, which history proves have an abysmal record of protecting the rights of certain citizens. And while 78 percent of Texas voters in a recent University of Texas at Austin poll may well believe abortions should be allowed in some form, don’t bet the house on that sentiment manifesting itself in the form of actual votes. So far as Texas goes, a 2021 state “trigger” law starts a 30-day countdown toward banning most abortions once the formal ruling from the Supreme Court is issued, presumably consigning to the trash heap a bizarre anti-abortion law encouraging nosy and judgmental Texans to sue for cash bounties any neighbors, co-workers or family members they find helping facilitate abortions, exempting those who actually received the abortions.

Even alongside controversial issues such as immigration, health care and gun rights, abortion is unique. In an era that condemns compromise, abortion is the one issue that absolutely demands cooler heads and societal and political compromise and savvy leadership if the life of the unborn is sacred and the rights of the mother are to be respected in ways that men in other matters demand to be respected. Indeed, many men vigorously resisting masking mandates and vaccinations during the pandemic have used the very same rhetoric that women have in resisting government’s telling them what they could and could not do regarding their own bodies.

Anti-abortion protesters once regularly likened abortion to slavery, but that’s a colossally flawed argument for their position – a former slave could indeed survive free, even though some whites for generations openly doubted the abilities of African Americans in individual subsistence; a former master could survive without a slave, certain hardships notwithstanding – the sort that slave owner Thomas Jefferson, for all his soaring words about liberty in the Declaration of Independence, was personally unwilling to accept. The abortion issue, by contrast, has dealt with the solitary instance when two lives are caught up in one physical body for the better part of a year. So whose rights prevail? Is a legitimate and workable balance of these human rights even possible in an age of extremes? Is it relevant? Has it even been possible in recent decades with one side screaming “baby killers” and invoking fuzzily interpreted biblical verses instead of fuzzily interpreted constitutional passages? Has it even been possible with pro-choice forces stridently accusing the other side of hiding their true motives in the debatable term “pro-life” and actually pressing an oppressive mix of Puritanism and fascism in trying to rob women of uniquely tailored rights that arguably ought to be respected to the degree Second Amendment rights are respected? Many Texas feminists note, and with some justification, that “pro-life” forces are largely AWOL in fighting for life-saving measures that might reverse Texas’ disgraceful reputation of having highest rate of uninsured women of childbearing age, the highest rate of uninsured children and the highest repeat teen-pregnancy rate.   

“Back in 1974, my wife and I did murder our own child [through abortion] and I suffer almost daily from that,” Waco attorney, Army veteran and former McLennan County Republican Party chairman Jon Ker told the Texas House Public Health Committee last year in favor of this state “trigger” bill while chairing the Abolish Abortion Subcommittee of the State Republican Executive Committee. “I do know the effects of what abortion can do, even from a father’s perspective, and that is just something that needs to be – the reprehensible thing of abortion needs to be abolished in our state and in our nation because it hurts everybody. And I would like to say one other thing and then I’ll quit: That life inside that mother is not the mother’s life. When we say that it’s a choice or the mother’s health, we’re [suggesting] that that life within that mother is not a separate life, and it is separate and that life under our founding documents needs to be protected.”

During the 2021 legislative session, other presumably equally sincere pro-life advocates lambasted the idea of the state of Texas waiting for the Supreme Court of the United States to finally get around to striking down the constitutionality of one’s right to an abortion. Some argued Texas should ignore the highest court in the land, ban abortion statewide to save unborn lives and secede from the United States if necessary. And more and more, frustrated pro-life advocates citing holy scripture and touting Christian values have abandoned the long-accepted view that young women seeking abortions are themselves innocent and misguided victims. “I see [that] women who have abortions are not seen as criminals, and I wonder why,” a Houston woman told the Texas House Public Health Committee shortly before Ker testified. “I know it’s partially because abortion is kind of an anesthetized term, but what’s really happening is child sacrifice. These precious human lives are being sacrificed to glorify women’s freedom of choice.” She cited Isaiah 1:17: “Learn to do right; seek justice. Defend the oppressed.”

And all this aforementioned diversity of opinion is just on the pro-life side. A Pew Research Center national survey conducted in March and part of a Pew report released Saturday morning found that while Republicans and Democrats have long been on opposite ends of the issue, the 42 percentage-point partisan gap today is considerably larger than it was in the recent past: “The change in attitudes has come almost entirely among Democrats: Currently, 80 percent of Democrats and Democratic-leaning independents say abortion should be legal in all or most cases, up from 72 percent in 2016 and 63 percent in 2007. Republicans’ views have shown far less change over time: Currently, 38 percent of Republicans and GOP leaners say abortion should be legal in all or most cases. In many ways, the partisan divisions over whether abortion should generally be legal in the United States tell only part of the story. While most Democrats say abortion should be legal in all or most cases, sizable shares favor restrictions on abortion under certain circumstances. And while most Republicans favor making abortion illegal in all or most cases, majorities favor exceptions in cases of rape or when the life of the woman is at risk.”

In short, many of us – me included – believe abortion is a right that reaffirms the long-suppressed rights of women in America and in history, even if that controversial right is tempered in the way everything from the right of free and provocative speech to the right to bear arms openly or not is tempered. Yet many of us who argue for this nuanced position are clearly caught in the crossfire of those whose principles forbid compromise, all too similar to what we see in long-raging debates over gun rights in Texas and beyond.

The Texas Legislature has certainly tested the limits of nuance and the law. While polls suggested Texans believed the comprehensive anti-abortion legislation passed by the Legislature during the summer of 2013 was excessive in some respects – such as tying up abortion clinics in regulations some say were clearly designed to shutter them – many actually approved of that law’s basic tenet that abortions be forbidden after 20 weeks. That meant a bracing realization for Democratic state senator and abortion rights advocate Wendy Davis in her uphill (and unsuccessful) bid to employ that issue in a 2014 gubernatorial campaign: She would have to broaden her platform beyond women’s health even as she marshaled women outraged by the new state law – a tricky balance, complicated by the fact many of us may stand up for certain abortion rights in principle but are aloof from its potential relevance in the lives of marginalized women. “There are enough women in this state that, if she articulates her message right, they could mobilize around this issue,” Ashley Blinkhorn, 25, a recent arrival from Florida astonished at the state of women’s rights in Texas, told me during a rally at Waco’s Poppa Rollo’s pizza restaurant, co-owned by Democratic activist and educator Mary Duty. Others at this event also wanted Davis to champion women’s rights, up to and including abortion rights. Carole Hanks told me that Davis needed to battle a political system in Texas that supplants a woman’s right to make decisions about her own health: “If a woman wants to carry a baby to term, that should be her decision and no one else’s.” Meanwhile, a big-screen TV replayed, to everyone’s delight, Texas Gov. Rick Perry’s wife Anita acknowledging that abortion could be a “woman’s right” — a remark her husband later walked back.

Justice Alito gets this much right at the very outset of his 98-page opinion: “Abortion presents a profound moral issue on which Americans hold sharply conflicting views.” The basic thrust in his draft opinion insists that not only is the right to a medical abortion mentioned nowhere in the U.S. Constitution but the legal scaffolding supporting it and the rights to contraceptives, racially mixed marriages and gay marriages – the fundamental and cherished right to privacy – is also mentioned nowhere in the Constitution. He stresses that abortion ranks as a special concern to the court in contrast to these other hard-earned rights because of its threat to the lives of the unborn.

Yet given the hobbling legitimacy of the Roberts court in survey after survey over embarrassments up to and including the scandal of the leaked draft opinion; heated calls for ethics reform for the high court after texts by the politically bonkers wife of right-wing Justice Clarence Thomas surfaced proposing a virtual coup d'état (texts followed by her husband’s failure to recuse himself from cases related to the insurrection at the Capitol); and high court nominees who clearly will say anything before Senate Judiciary Committee members to get plum lifetime appointments, a question must arise about this court and its supposed integrity: Who amidst all this can believe these politicized justices won't soon come after other “rights"? Conservative gadfly Ben Shapiro and other emboldened right-wing zealots have already signaled they're coming after gay marriage next. Some Republican senators during stormy confirmation hearings for Supreme Court nominee Ketanji Brown Jackson raised questions about past court decisions justifying such rights as that allowing a person of one race to marry one of another race (though one might well assume that on a court where the racially mixed marriage of Justice Thomas and his wife Ginni are given proper deference, this conservative attack would hold very little sympathy). And some Republicans in Texas and beyond are now discussing legislation to prosecute women who dare travel across state lines to secure an abortion or penalize those organizations that dare aid them – an idea that would seem to conflict with the right to freely travel in the United States of America as well as the Thirteenth Amendment against enslavement. The unrepentant tone in the Alito draft practically invites all malcontents, theocrats and out-and-out fascists to launch further combat in our divisive culture wars, condemning our nation to more vicious infighting and resentment and misunderstanding as the global threats to American democracy and our very lives mount around us.

In his February draft, Justice Alito repeatedly dismisses the reasoning of past justices (nearly to the point of insulting them) in his insistence that the right to an abortion is mentioned nowhere in the Constitution. He’s right, of course, but there’s also no mention in the Constitution about, say, allotting free speech rights to corporations in the form of unlimited and corrupting cash to political entities, per the Citizens United v. Federal Elections Commission ruling of 2010, which Alito supported. And that court decision has enriched already wealthy elites and widened our societal and political divide through corporate titans and noisy billionaires eager to game the constitutional system for their own ends, even as they sometimes play populist puppeteer to the masses.

And regarding that right to privacy upon which some arguments for abortion rights have relied: Given that some of us believe the high court has succumbed to unceasing political pressure, Alito and concurring justices best be wary of the capricious far right, increasingly alone in granting them legitimacy: Privacy has been cited as a constitutionally relevant right by conservatives in everything from filling out U.S. Census forms (a tea-party gripe in 2010) to gun-ownership registries, which some fear will allow the government to readily confiscate our home weaponry when it finally mutates into dictatorship. McLennan County Sheriff Parnell McNamara specifically mentioned this latter scenario as a concern when I interviewed him a couple of months ago. It was part of his broader concern back in January 2013 when he surprised some constituents by insisting he would refuse to enforce new federal laws restricting access to guns or ammunition, a position many sheriffs took after a December 2012 mass shooting at a Connecticut elementary school that left 20 children and six staff members dead. The slaughter had prompted calls for new measures against gun violence. Surprisingly, pro-life forces so dedicated to the lives of the unborn went mostly mum in this debate over killing sprees that claimed the lives of innocent women and children, confirming certain suspicions voiced by pro-choice forces all along.

Alito makes a strongly originalist argument for leaving abortion questions to the states, including the very voters whom he has helped confound through court opinions over the years undermining voting rights and perpetuating gerrymandering abuses. And his rationale in the draft opinion that certain unspecified rights must have at least some grounding in history fails to acknowledge that for the past half-century abortion rights have been consistently accepted and even embraced as a relevant if carefully regulated right by a majority of our fellow citizens in survey after survey after survey. And the past half-century going back to the Nixon era and the Vietnam War and women’s liberation and campus unrest and civil rights surely counts as history critical to democracy. True, Alito says the court has long determined rights by how “deeply rooted” they are in our history. Yet this claim proves Alito’s blindness – and likely that of other justices in the anticipated majority – to the rights of many Americans not as personally fortunate as those high justices. Deeply rooted? Consider our deeply rooted history of slavery and Jim Crow laws and Indian eradication and, yes, the tardiness of citizens in granting the Nineteenth Amendment. Dred Scott, anyone? Alito fails to realize that, to note it again, the American saga has always been one of discussion and debate, up to the point of violence and disunion, over who in our vast and increasingly diverse numbers rates full rights – and who doesn’t.  

Finally, Alito pointedly notes how legal schemes of past justices not only fail to pass constitutional muster but “have enflamed debate and deepened division” among Americans. Right again, but one reason past court decisions haven’t gained traction or acceptance is because those in Alito’s own political party have repeatedly enflamed segments of society against these rulings, demonstrated in everything from local boycotts of Girl Scout cookie drives to threats of outright secession. Support for overturning Roe has become a virtual litmus test in the Republican Party – and not only for GOP candidates seeking executive and legislative positions but for supposedly unbiased federal court nominees pressed by Republicans for lifetime appointments. (And, yes, the same charge can be leveled at Democrats.)   

If certain past justices of the Supreme Court of the United States – many of them Republican – are guilty of anything in Roe v. Wade and the Planned Parenthood of Eastern Pennsylvania v. Casey ruling tempering that right in 1992, it’s in trying to establish a reasonable constitutional framework for a safe medical recourse uniquely important to some women in an era of newfound liberation, even if this right didn’t quite constitute an absolute right. But then what right is absolute? What right should be absolute?

When all is said and done by the current court in the days and weeks to come, many women and those who love them and fight for their rights may well realize that the rights of a pregnant woman reluctant for whatever reason to give birth and the rights of an unborn child to one day walk free among us were pretty well balanced by high courts of the past with some reasonable restrictions by states. At least, they were before state legislators began pushing the limits of what was reasonable and a handful of justices on this court, bowing to political expectations inherent in their appointments and confirmations, upset the equilibrium and risked enflaming passions and deepening our divide even more than Justice Alito imagines or cares.

This is an expanded version of a column published in the Waco Tribune-Herald on May 8.