Terry H. Schwadron

May 9, 2022

Now that we have seen the reasoning behind the apparent reversal of abortion rights, the expectation is that the Supreme Court’s conservative majority is about to run the table overturning hard-won protections for same-sex marriage, civil rights, transgender policies, even contraceptives.

Indeed, based on the abortion draft decision, we can anticipate further challenges. But what may be more noteworthy right now is a spreading fear – and some initial actions — that may prove to be as harmful to an America redefining its divided self. It is a palpable fear to many who see an ascendent political right leaning as leaving basic human dignities and inclusion at stake.

Breezing over all the headlines and social media posts, it is as if an emboldened conservative court majority is on campaign footing to seek out one target after another.

That is not exactly right: However radical this conservative swing proves to be, the court itself sits passively in wait of cases that are brought to its attention.

The practical reality is more that the court’s willingness to blow away precedent over abortion is being read as encouragement for those on the right to use the court’s now-activated majority to achieve a boatful of previously unattainable political goals basically built around a combination of supremacy of religion over other rights, limits on federal power and hands-off policies regarding social problems.

News outlets have shown gleeful anti-abortionists already looking ahead to reversing decisions supporting same-sex marriage and further loosening gun-carry laws.

Gov. Greg Abbott (R-Texas) already is eyeing bringing a court challenge to overturn an 1982 decision requiring that Texas educate migrant children. Louisiana is moving ahead even of any abortion ruling to consider prosecuting women who abort for homicide.

Transgender people and gays are bracing for this court majority to accept cases that undercut their protections, reports NPR. The leak investigation is prompting questions about going after journalists who received the leak and the site that published them.

Added to pending challenges about what books we can read to satisfy this conservative viewpoint on acceptable lifestyle, what new ant-gay warnings we are being told we need place on children’s television, among others, this draft decision ignoring precedent is launching an avalanche of possible attacks on previous decisions of all sorts.

Little of the abortion fight is calm or reasoned. We can expect that hate, ill-feelings, societal frustrations and the backlash and protest that such expression necessitates will blossom in the next weeks and months. We’re hearing of new trucker protests at the same time as new abortion rights mobilizations, and connections all over the place to the November elections.

You can’t expect to take away what are perceived individual rights without expecting sustained and contradictory protests – this weekend including outside churches and the homes of the court justices.

Not believable

Despite a passing attempt in his draft opinion to separate abortion from other decisions affecting social rights, Justice Samuel Alito has set off a wildfire of fear about overturning of rights and the dominance of a partisan conservative group that now finds itself with a narrow majority on the court.

Frankly, the language of the opinion suggesting that the court would not make a precedent of overturning other rights and precedents is less than believable. Alito sought to distinguish abortion from other rights because it, unlike the others, destroys what the Roe ruling called “potential life.”

If the reasoning in the draft opinion holds until the court’s expected release in June, it could threaten other rights that Americans take for granted in their personal lives, say a passel of legal experts.

Abortion is one of several topics covered by what are called “substantive” due process liberties, including contraception in 1965, interracial marriage in 1967 and same-sex marriage in 2015. Though None are mentioned in the Constitution, they were linked by the court to personal privacy and equality. Conservative critics say the substantive due process principle improperly lets unelected justices make policy choices better left to legislators.

Alito said that substantive due process rights must be “deeply rooted” in U.S. history and tradition, insisting that abortion does not. In truth, women have aborted over centuries, just not legally or in the healthiest manner.  

Not helping are the constant reminders that as nominees to the court, these same justices now voting to overturn Roe either misled senators, lied outright about their intentions or acted as political actors to get through their hearings.

Justice Clarence Thomas intoned this week that the leak made him believe that institutions are under attack and shouldn’t be bullied by public opinion – rather than acknowledging the damage to the institution by by the participation of his wife in efforts to overthrow the government. The disrespect he mentions is exactly how Americans feel to have the abortion rug pulled out from beneath them, with more to come.

Reaping Unclarity

Even the abortion issue alone will generate necessarily generate more challenge material. The draft opinion is silent about limits of abortion laws by states, and Republican-led legislatures are in such a hurry to bar abortions that questions persist about the exceptional cases of incest and rape victims, mailed abortion pills and women’s other health concerns.

Sen. Minority Leader Mitch McConnell broadly hinted that a November election win for Senate Republicans could result in a nationwide ban on abortion rather than the patchwork of state laws that is supposed to result from the Supreme Court decision.

Companies are scrambling to figure out what can and cannot be covered under health policies, including transportation for workers to states that will continue to offer legal abortion. The repeal of Roe is likely to make it more difficult for women in the military to find access to the procedure safely and legally, potentially endangering military readiness of units, noted the military press.  The issue of abortion pills delivered through the mails is being recognized as a messy, unaddressed subset of problems in which some states want to control distribution even outside their boundaries.

If the reasoning in the draft opinion holds until the court’s expected release in June, it could threaten other rights that Americans take for granted in their personal lives, say a passel of legal experts.

Alito’s opinion leaves it to lawmakers to decide. As we will see this week, the split U.S. Senate cannot decide on codifying what has been U.S. law and practice for 50 years; neither side has the votes to win the day entirely. And so, the contentious issue will go to the states, which also will split almost evenly over the same partisan political lines as the Senate.

We’re left wondering what it means to be an American, what values are represented. If we’re all to be only Texan or Californians, Louisianans or New Yorkers, what does it mean legally to work for a company that does business nationally or internationally? What does it mean to individual rights when one is transferred to a military base in a red state?

The fears here are about whether there is any limit to overturn individual rights. That is something every politician and court justice ought to be made to answer.

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