The Big Lie is not going anywhere, but it seems we now have an even more dangerous corollary to consider. Call it the Big Truth.
Assuming the stunning and unprecedented leak, via Politico, of a Supreme Court draft opinion overturning Roe v. Wade is legitimate — and an outraged Chief Justice John Roberts has now confirmed the Alito draft is a working, but not final, draft — then the inarguable Big Truth is that this is just the beginning of a radical revolution in American life.
And not in a good way. Not at all.
I’m not sure how many of those who voted for, say, Donald Trump in 2016 were aware of the revolution they were instigating. But now, if we dare look, we dare know. Trump’s three appointees to the court have made it the most conservative — yes, radically conservative — court in living memory. We can blame Trump. We can blame the Machiavellian stylings of Mitch McConnell. We can blame Sen. Susan Collins for being either disingenuous or naive. Or, for all those who didn’t take the danger seriously enough, well, they can just look in the mirror.
The conventional wisdom was that the court would not be so bold, even when flaunting its new 6-3 conservative supermajority, as to completely overturn Roe v. Wade and Planned Parenthood v. Casey. Many court observers were expecting incremental, if still radical change, like the changes in Texas leaving abortion law to the vigilantes, or, as in the case upon which the Supreme Court is ruling, a 15-week abortion cutoff in Mississippi. Neither of these laws, by the way, grant exceptions for rape or incest.
Sam Alito’s apparent opinion overturning Roe doesn’t sugarcoat it, except in pretending that the end of Roe does not necessarily mean, for example, the end of the right to same-sex marriage or, say, the right to birth control. He wrote that Roe was “egregiously” decided, even though the 7-2 majority in the landmark case included five Republican-appointed justices.
He wrote, too, that the Roe decision — now nearly 50 years old — had made a divisive issue even more divisive, even though polling has shown just the opposite. He wrote that overturning settled law — if you think the law was wrongly decided — is not a bad thing in and of itself and went so far as to compare this decision to the overturning of Plessy v. Ferguson, which, you may recall, enshrined the separate-but-equal doctrine in matters of race and is generally considered among the worst court decisions ever made.
But what might be the strangest argument put forth by Alito is that abortion is not mentioned in the Constitution. Of course, the Constitution, as written, not only approved of slavery but also denied women the right to vote, so it may not be surprising that even as the all-white, all-male Founders were willfully making American women second-class citizens, they spent little time debating the niceties of what today we call women’s issues.
So if this draft version or something very close to it is announced, as expected, in June, it will leave America as a patchwork of red and blue states — the great writer Ron Brownstein calls it the “great divergence” — with differing abortion rights from state to state. And it would leave those lucky enough to live in Colorado — which just recently codified its longstanding right to abortion — a virtual island among states that will otherwise outlaw or severely restrict abortion. It’s a 21st-century ruling that would have been welcome in the 18th century.
In fact, Colorado, a center-left state, is among the most liberal in adopting abortion law. The last time the anti-abortion movement took the issue to a vote of the people, it was for a measure that would disallow, in most cases, late-term abortions. By a 59-41 margin, Colorado voters rejected the proposition. just as they had even more emphatically, on two occasions, rejected so-called personhood laws that would declare an embryo a human at conception.
It is estimated that 40% of American women live in states where abortion would either be banned or severely limited in a post-Roe world. It is rare in America — or used to be — that granted rights could be taken away. Most of the important Supreme Court cases we remember and revere granted more rights, not fewer.
I’m old enough to remember when Roe was decided and how it changed America, as just one of the new rights — including civil rights and voting rights and workplace rights and disability rights and the right to use contraception — that brought America roaring into the 20th century. Many of these rights came about in court decisions that relied on much of the same kind of legal reading that Roe did. And many of these rights and more are endangered by Alito’s draft.
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And I remember when the arguments — pre-Roe — were more about a woman’s right, versus the state’s right, to control her own body. In the long-term Republican battle — much of it simply an appeal to its evangelical base — we heard a lot about fetal heartbeats and abortionists. It was not until Amy Coney Barrett’s nomination to replace Ruth Bader Ginsburg was rushed through the Senate that overturning Roe seemed possible. And Alito, whose draft makes it clear that he’s more than willing for his decision to invite more bad feeling, had the nerve to cite Ginsburg twice in his opinion.
Now we’re going to hear a lot about polls showing young people overwhelmingly pro-choice and whether the end of Roe will be the turning point in modern American politics. Will this ruling send Democrats to the polls in November’s midterms? For Congress to enact a law affirming the right to abortion would require Democrats to win back both the Senate and the House in the coming midterms, with the Senate needing enough votes to overcome the filibuster, at least in this one instance.
History says the party out of power will almost always pick up seats. But there’s history, and then there’s history.
Of course, we don’t know how the Alito draft will look when the court rules in June. Often many drafts are circulated before a final vote of the Court is made. Whoever leaked the draft opinion — and the leak is what Republicans seem to be most angry about — almost certainly wanted it to have an impact on public opinion today, months before the midterm elections, at a time when many court observers believe Roberts has been desperately trying to make the decision less radical.
But with six conservative votes on the Court, the other five don’t need Roberts, whose leverage has been steadily eroding.
And, yes, we have some idea of what’s coming. Certainly, we should be concerned about any and all LGBTQ matters and maybe even contraception laws. But for those who would compare this draft ruling to Margaret Atwood’s dystopian “Handmaid’s Tale,” it’s actually worse than that.
This egregious — if I can borrow the word — ruling, so rooted in the distant past, is now our future.
Mike Littwin has been a columnist for too many years to count. He has covered Dr. J, four presidential inaugurations, six national conventions and countless brain-numbing speeches in the New Hampshire and Iowa snow.
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