Now that conservative justices have a solid five votes on the Supreme Court (assuming that Chief Justice John Roberts will not join them on the most divisive issues), no prior decision is safe. American women had abortion rights for 49 years, and that right is on the verge of being nullified by Justices Alito, Thomas, Gorsuch, Kavanaugh, and Barrett.
Milton J. Valencia of The Boston Globe warns that the anti-abortion movement will not be satisfied until all abortions are ended, in every state.
The strongly worded legal language used in the draft Supreme Court opinion that appears to overturn nearly 50-year-old abortion-rights protections could provoke conservative efforts to enact a universal, nationwide abortion ban, according to legal and policy analysts on both sides of the political debate. They say the case has already galvanized advocates who want a federal law criminalizing abortion.
The Supreme Court, based on the draft opinion, appears set to not only uphold a controversial Mississippi law banning abortions after 15 weeks of pregnancy but also overturn the landmark 1973 Roe v. Wade decision that protected a person’s right to abortion. The court opinion suggests the question over abortion restrictions should be legislated at the state level.
The draft opinion was written by conservative Justice Samuel Alito and leaked to Politico, and legal analysts say it remains unclear whether the language will survive in a final court opinion. Even if it does, the ruling itself would not necessarily affect liberal states such as Massachusetts, which have built what are known as Roe protections of abortion rights into state law.
But the legal arguments cited in Alito’s opinion could give political momentum to efforts to enact a federal abortion ban similar to what Mississippi enacted — or, potentially, even more restrictive — on the grounds the fetus is an unborn human being with its own rights. Attempts to pass a federal ban have been proposed before but always failed under the protections of Roe v. Wade.
In his ruling, Alito argues a woman has no constitutional rights to an abortion and suggests that fetuses deserve protection. A federal ban based on the ruling could set up legal challenges of state laws that protect an individual’s right to decide. Massachusetts’ Constitution grants far broader legal rights than the federal Constitution allows, say legal observers, who point out the state was the first to legalize same-sex marriage. But federal law trumps state law.
“The court ruling signals to those in Congress that it’s providing a blueprint for those who want to take away the reproductive rights of all people,” said Carol Rose, legal director of the American Civil Liberties Union chapter in Massachusetts. “It suggests Justice Alito is providing something of a legal road map for people trying to criminalize abortion.”
Priscilla Smith, a former litigator in reproductive rights issues who now runs Yale Law School’s Reproductive Rights and Justice Project, said Alito appears to be “putting all the bread crumbs on the trail,” for what she called the decades-long conservative effort to ban abortion.
“This opinion is as outrageously conservative and extreme as it could get,” she said.
Here, according to Rose and Smith and other analysts, are the key concerns among abortion rights advocates with Alito’s draft opinion:
— The justice, and others who appear to be joining in on a majority decision, argue that there is no right to abortion spelled out in the Constitution, rejecting the argument — granted in Roe v. Wade — that a woman’s right to choose is an inherent, fundamental right built into broad due process rights to liberty. Alito’s determination, legal analysts say, undercuts the same legal principles that have affirmed other rights, such as the rights of people to choose whom they marry, or have sex with. Smith accused the court and antiabortion advocates of “cherry-picking” which fundamental rights they want to challenge, arguing that many rights are widely accepted even though they are not built into the Constitution.
Harvard legal scholar Laurence Tribe wrote on Twitter: “If the Alito opinion savaging [the Roe decision and similar cases] 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.” Tribe added, “Predictable next steps after the Alito opinion becomes law: a nationwide abortion ban, followed by a push to roll back rights to contraception, same-sex marriage, sexual privacy, and the full array of textually un-enumerated rights long taken for granted.”
— Alito appears to refer to fetuses as human beings as a matter of traditional and common law and refers to a fetus as an “unborn human being,” which could give constitutional rights and protections to the fetus and set up legal challenges of state laws that do protect abortions. He refers to a fetus as being destroyed by abortion rights. Rose said the opinion fails to discuss the viability of a fetus. “They don’t distinguish whether you’re pregnant for one day or 24 weeks,” she said.
— The judge also appears to follow the originalist legal theory that matters not involving federal constitutional law should be decided by the states, writing, “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” But legal analysts say that reference to elected representatives, rather than state officials, opens the door for a Republican-controlled Congress to get involved. “This is not an originalist document, it’s an ideological document,” Rose said.
— The opinion would effectively call for what is legally known as a “rational basis for review” of future abortion restrictions, which is considered the lowest level of legal scrutiny, and it allows for little consideration of a person’s reproductive rights and factors an individual must consider in choosing whether to have an abortion. “It never talks about pregnant people’s bodily integrity, or autonomy, or forcing somebody to go to term. That’s really the huge shift,” Rose said.
Elizabeth Smith, director of state policy and advocacy of the Center for Reproductive Rights, an advocacy organization, said in a statement that, “Any scenario in which Roe v. Wade is overturned would open the door to a national ban — and we know that is the ultimate goal of the anti-abortion movement. For them, overturning Roe is just the beginning. They are determined to ban abortion in every state in the US.”

Abortions will never end, they will just be much harder to get. Some will have easy access, some will not. Legal or not, it’s here to stay. The only factor that might affect this issue is moral beliefs, whether it be religious or personal. Laws will not stop abortions, only cause misery.
LikeLike
Thank you for not sweeping under the rug the connection between abortion and conservative religion. The right wing (notably Alito) contrived the separation. Many on the left cower at the word “religion” or specific sects of religious and that advances the goal of the right wing.
Media and influencers don’t protect the politicking of evangelicals as they do the other major religion- the one to which 6 of the conservative judges belong.
LikeLike
I don’t think the Republicans have the votes for this or even enough support to get it to a vote. It would be a suicidal path for the party. Some might say the party has shown suicidal tendencies for years, and that’s true; but those tendencies haven’t really changed how people vote. This would change how people vote, I think.
Also: Veto.
LikeLike
The next Supreme Court decision?
LikeLike
If the Alito opinion savaging [the Roe decision and similar cases] 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.
This is exactly the case, and it goes far, far, far, far, far beyond just abortion and contraception. Contraception is probably safe. What isn’t safe are hundreds of other laws related to what is called in legal jargon “unenumerated rights”–ones not specifically stated in the Constitution but that have been advanced based upon principles giving a broad reading to items in the Constitution like the due process clause. At issue are things like the right to vote without undue difficulty, the right of gay and lesbian people to marry, interracial marriage, freedom from government surveillance and all other privacy rights (a right to privacy is not explicitly mentioned in the Constitution or in its amendments), interpretations of the right to assembly (including assembly to protest), the right of a woman not to be raped by her husband, the right of women and POC not to be discriminated against int he workplace, the right of consumers to redress when they are cheated by businesses, the right of people not to be poisoned by corporate polluters, the right of students not to be victims of predatory lenders, the right not to be raped, the right not to be forced into marriage at a young age, and much, much else.
Alito’s decision was specifically written as a template, a boilerplate, for overturning CENTURIES of Supreme Court decisions that rest on unenumerated rights and sending all the Supreme Court decisions based upon unenumerated rights back to the states.
It basically argues that if something isn’t explicitly mentioned in the Constitution, then you have to look to the history. Was this a right envisioned by the founders? Did legal scholars AT THAT TIME consider this a right? Well, no, they didn’t think that people had a right to marry across racial lines. No, they didn’t think that people had a right to marry people of the same sex. No, they did not think that everyone should be able to vote. No, they did not think about the right not to be sexually harassed in the workplace. And so on.
The nearest historical analogue to the Alito decision that I can think of is the Enabling Act of 1933, in Germany. The Alito decision is MUCH, MUCH BIGGER than abortion. It’s a blueprint for enabling fascism across a large swath (the red swath) of the United States.
LikeLike
And Alito knew exactly what he was doing, there. I have no doubt about this. I have read this decision. I wonder how many journalists who write about it and how many of our politicians actually have.
If you have read it, and if you have understood what you have read, then you find this decision stone cold frightening.
LikeLike
Interracial marriage is also safe. No state is going to ban interracial marriage.
LikeLike
Yes. I think you are right. But stuff like disabilities protections? forget it. Federal laws and Supreme Court decisions providing those could be struck down on the Alito precedent. Unenumerated rights.
LikeLike
The basic argument of the Alito decision is that if it’s an unenumerated right, then you look to the history at the time of the founding and before, and if you don’t find it there, it’s up to the states, not to the Court, and not to Congress.
LikeLike
The Founders never imagined interracial marriage or gay rights or gay marriage or integrated schools.
LikeLike
or regulation of interstate commerce or federal food and drug regulation or protection of the rights of disabled persons or even a right to an education. And much, much, much, much else. The Alito decision is a time machine for sending half the country, at least, back 250 years.
LikeLike
Many countries have a federal Constitution that establishes a right to education. We do not.
LikeLike
And so it’s a blueprint for wiping out a whole lot of existing law, and Alito knew exactly that he was creating such a blueprint. This is something the right in the U.S. has been champing at the bit for since before Bork and Scalia and the other so-called “Originalists.” They want to do away with the whole body of federal law and Supreme Court precedent based on unenumerated rights that are in turn based on generous readings of stuff like the due process clause, the privileges and immunities clause, and the equal protection clause of the 14th amendment
LikeLike
cx: The new conservative supermajority on the Extreme Court wants to do away with whole bodies of law based on generous reading into the Constitution of expansive federal powers and unenumerated individual rights. Dobbs is a declaration of war on the whole history of Constitutional interpretation. Dobbs is a template for doing that, for saying about law after law, decision after decision, no, that federal power or that right wasn’t explicitly stated in the Constitution and wasn’t envisioned by the founders and by legal scholars of the time when the Constitution was written. Therefore, this needs to be left up to the states (many of which have Republican supermajorities).
LikeLike
Would Clarence Thomas vote for a decision that dissolved his own marriage?
LikeLike
lol. No, he would pick and choose what he wanted to be all Originalist about.
LikeLike
“Darling, I’m sorry, I couldn’t do anything about it — the text of the Constitution was clear!”
LikeLike
LOL, Flerp!!!
LikeLike
There’s a better joke in there somewhere about a man looking for novel ways to get out of his marriage.
LikeLike
So, for example, the commerce clause of Article 1, Section 8 of the Constitution gives Congress the right to regulate commerce with foreign nations, among states, and with Indian tribes. But the right to regulate commerce among states has been VERY broadly interpreted over the years to include federal regulatory power over commerce generally–for example, the power to pass labor laws like the federal minimum wage and child labor laws, the ability to regulate food and drugs, environmental protection regulation of businesses, etc. This is why we can have an EPA or an FDA or departments of Transportation and Labor. So, this broad reading of unenumerated rights to federal protection under the commerce clause has long been a conservative bogeyman.
Alito’s Dobbs decision is an attack on the very idea of unenumerated rights on which a LOT of the law depends.
LikeLike
As I read it, the Dobbs decision amounts to a second American Revolution and was meant to be exactly that by a new conservative supermajority on the court. Even as it advances an argument that lays waste to much of a couple hundred years of Supreme Court decisions and Congressional legislation, it provides precedent for coming decisions that would establish a very different national order. And this is what it was/is meant to accomplish.
LikeLike
We can all fantasize what it might be like to live under the laws as they existed in 1789 or so. SCOTUS May throw out every court decision or law since then.
LikeLiked by 1 person
Dobbs is a template for doing exactly that. It’s revolutionary. It’s the new conservative supermajority throwing down the gauntlet. Well, ha, ha. There’s a new boss in town.
LikeLike
Conservatives want to go back to 1886. This was the time of unfettered capitalism, Protestant dominance, and Eurocentric philosophy.
LikeLike
Exactly
LikeLike
One thing we might wonder about is who
Leaked the decision. Perhaps this was a planned leak to test the waters where an extreme position was selected. This broad sweeping Alito decision might be softening up opposition by suggesting what might have been, only to rule much more narrowly on this particular case. This liberal fears of a large Chunk of civil rights might make the loss of abortion rights seem like a compromise.
Another possibility is that liberal clerks leaked the document to stir interests in the issue. If this is the case, I would say it worked rather well.
LikeLike
There is no doubt that the conservative SCOTUS judges want to turn back history. Women who vote for the GOP are brainwashed, stupid or intimidated by the men in their lives.
The reality in the U.S. is that the rights of women have always been hard fought and required a majority of men in Congress to pass. Women weren’t originally included in the federal Civil Rights Act of 1964. One U.S. Congressional representative introduced the word “sex” to the legislation for consideration. Depending on who writes the history, either Rep. Howard Smith (Va.) hoped to torpedo the bill with the insertion or, he was a champion of white women. (“How women became part of the 1964 Civil Rights Act”, Thought Co, 2-4-2020 and, Encyclopedia Virginia, “Rep. Howard Smith”).
The SCOTUS majority wants to abolish federal rights in favor of states rights which allows the type of consensus that enables racial, religious and sex discrimination.
Observing the talking points of conservative church leaders has become critical for women’s rights. Over the weekend, the Uvalde murders were addressed by a high ranking Texas religious leader of a conservative religion. It appears he wants to carve out some separation – GOP 2nd amendment dogma and gun control which has become popular with voters. Preserving his church’s political wins in outlawing abortion (and, pharmaceutical birth control) remains paramount. Like his conservative brethren, the leader invokes ecclesiastical support for his political position. In his pontificating, he makes a case for the now popular gun control. He threads a needle in claiming, “there is a nobility of politics (as reflected in) a gathering of consensus within the community.” He may not want to acknowledge that communities in the southern states reached consensus on slavery. And, in Texas, a 1854 slave state, they can reach consensus that pregnant women’s lives don’t matter and women should have pregnancies forced on them when raped or in consensual relationships or in situations of incest.
LikeLike
Which do you dislike more: men or Catholics?
LikeLike
Good to know that you already knew about the almost 50 state campaign for school choice, spearheaded in state capitols by the state Catholic Conferences. I wish you’d told me about it, sooner.
LikeLike
Also, good to know that you’re so Zen about an organization that took your taxes and your civil rights for decades while never being named.
I can kind of see it from your perspective. No man’s life will be sacrificed as a result of the organization’s takeover of legislatures, governorships and the courts.
LikeLike