A leaked draft of a Supreme Court ruling this week confirmed what many had been fearing for months: a justice dominated by conservatives, Roe v. Wade and millions of women lose abortion access overnight.
The 98-page draft, which was confirmed by Chief Justice John Roberts, was valid but not final, written by Justice Samuel Alito, one of the panel’s most conservative jurists. Here are some of the most confusing excerpts from the leaked text.
It’s obsessive to put women in the past.
Alito argued repeatedly throughout the draft that Roe v. Wade was a mistake, because until the 1973 rule, banning abortion was the only American way.
“Until the late 20th century, there was no support in U.S. law for the constitutional right to obtain an abortion. Nil. None. No state constitutional provision recognized such a right. Roe was assigned Until a few years ago, no federal or state court had recognized such a right.
Alito is right: Abortion was widely banned throughout centuries of American history when women were legally treated as second-class citizens, excluded from medical institutions and public office, and property owners. Being was banned. They didn’t get the right to vote until 1920, and black women faced barriers to voting until Congress passed the Voting Rights Act in 1965—just eight years before the court ruled Roe.
It would not be until after Roe’s decision that all women in America had the right to apply for a credit card without a man’s permission, demand protection from being fired during pregnancy, and sexually harassed at the workplace. was prosecuted. Until the 1990s, many states did not recognize marital rape as a crime.
Legal progress on female bodily autonomy came as women fought their way into the decision-making spaces men had long kept out of them. But here’s what Alito had to say:
“The inevitable conclusion is that the right to abortion is not deeply rooted in the country’s history and traditions,” he wrote. “In contrast, an unbroken tradition of prohibiting abortion at pain of criminal punishment persisted from the early days of common law until 1973.”
It repeatedly cites a misogynist from the 1600s who killed women for “witchcraft”.
Most Americans have probably never heard of Sir Matthew Hale, an English jurist born in 1609. But Alito cited them half a dozen times throughout his draft as evidence that abortion restrictions are an essential part of our nation’s heritage.
“Hale wrote that if a physician gave a ‘drug’ to cause an abortion ‘with the child’, and the woman died, it was ‘murder’ because the drug had been given ‘to destroy her child within her’. illegally’,” Alito wrote in defense of outlawing abortion in 2022.
It should come as no surprise that Hale was opposed to abortion, given what journalists dug up about him recently. His legacy includes executing two women for writing in defense of “witchcraft” and marital rape.
Although Alito held her as an authority on the criminality of aborting a fetus, Hale also advocated the death penalty for children under the age of 14.
If all the medical standards of Hale’s life were applied today, we would not know of the existence of microbes, medicinal ingredients would have included the skulls of slain criminals and live insects, and doctors would leech in to suck our sick patients. Used to cover blood. For most of Hale’s lifetime, doctors didn’t even have a scientific understanding of where babies came from.
It ignores major barriers to voting on abortion.
Alito wrote throughout his draft that abortion should be a matter of state law. If people want access to it, he wrote, they just need to choose people who support it.
“Our decision returns the issue of abortion to those legislative bodies, and it allows women on both sides of the abortion issue to influence the legislative process by influencing public opinion, lobbying legislators, voting and running for office. is,” he wrote. a way. “Women are not without electoral or political power.”
Yet voting rights have been under siege like never before, with many conservatives using the myth of widespread voter fraud to justify policies that make it harder for working class people and ethnic minorities to cast their votes. State legislatures that have recently passed such laws – including actions on voter identification, early voting and voter registration windows – are the ones planning to outlaw abortion as soon as possible.
Despite those issues, the Supreme Court made it clear last year that it would not act to stop voter suppression laws.
Furthermore, the will of the electorate does not always determine the makeup of our country’s supreme political and legal bodies. Alito himself was nominated to the High Court by a man who became president without securing the popular vote. So were three of the other four judges who clearly wanted to kill Roe: Brett Kavanaugh, Amy Connie Barrett, and Neil Gorsuch.
It debunks the “fetal heartbeat” myths.
The recent wave of abortion restrictions tied to the presence of a “fetal heartbeat” isn’t based on real science, doctors have said for years. But Alito refutes the myths that those laws are written anyway, calling them “factual inference.”
The Mississippi legislature “found that an ‘unborn human’s heart begins to beat at five or six weeks’ gestational age,” Alito wrote in an excerpt.
But doctors say that calling it a heartbeat is wrong and doing so is just an attempt to manipulate people’s emotions. At six weeks’ gestation, heart activity in a fetus—not yet called a fetus—”is not quite the same as what will eventually become a functioning human adult heart,” Dr. Colleen McNicholas, an obstetrician-gynecologist who performs abortion, told HuffPost in 2019.
“At that point, it’s really just these two tubes containing the heart or two layers of cardiac cells that can vibrate or cause some sort of motion that we use colloquially as ‘fetal heartbeat. Let’s talk about it.”
It doesn’t consider pregnancy and motherhood as a big deal.
Without offering any pushbacks, Alito summarizes a hollow argument by the anti-abortion movement: that getting pregnant and becoming a mother isn’t as difficult as it used to be.
“Attitudes about unmarried women’s pregnancy have changed significantly; that federal and state laws prohibit discrimination on the basis of pregnancy, that leave for pregnancy and childbirth is now guaranteed by law in many cases, that the cost of medical care associated with the pregnancy is covered by insurance or government assistance,” Alito wrote.
It would be an apt place to note that the US is one of only six countries in the world that does not have a national paid family holiday. The rest of the world average is 29 paid weeks. It’s also too generous to say that pregnancy-related leave from work is promised “in many cases,” as only 10 states and Washington, DC have enacted their own laws mandating paid family leave.
Contrary to Alito’s characterization, pregnancy and childbirth are not free. The average cost of having a baby in the US is about $11,000 and is without complications. Accounting for the care needed before and after delivery can push the bill up to $30,000. Those costs also vary wildly from state to state.
It claims that Roe has further divided Americans.
Alito also emphasized how much the country has been divided by the Supreme Court ruling of Roe and Planned Parenthood v. Casey – which upheld the former.
“Cro was seriously wrong from the start,” Alito wrote. “Its argument was extraordinarily weak, and the decision has had harmful consequences. And far from bringing about a national solution to the issue of abortion, Roe and Casey have fueled debate and deepened divisions.”
But widespread polling shows that public opinion on abortion has remained largely stagnant in recent decades. While many Americans support certain restrictions on who can and when abortions, 6 out of 10 Americans oppose reversing the TODAY Row. Young adults are also more supportive of abortion access, polling shows, indicating that support for the safety of the procedure may increase over time.