“Roe’s opponents want to punish women and eliminate their rights to decide about their bodies.” Thus thundered the vice president of the United States Kamala Harris in the aftermath of the revelation that the Supreme Court was preparing to revoke “Roe Vs. Wade”, the 1973 law which guarantees women the right to interrupt pregnancy. The revelation came to light through a leak published by the Politico website. It is a 98-page draft in which you are informed of the judges’ communications to revoke the law guaranteeing the right to abortion. The author of the draft, the Italian-American judge Samuel Alito, wrote that “Roe was blatantly wrong from the beginning” also because the American constitution does not mention abortion. That is true, but there are quite a few rights enjoyed by Americans today that are not specifically included in the constitution.
The judges’ discussions to arrive at the final draft that will eventually be published are expected to be secret and were to culminate in an official announcement this summer. Chief Justice John Roberts is obviously disappointed by the transgression and has launched an investigation to find out who was guilty of disclosing top-secret information. The leak added negatively to the reputation of the highest court whose approval dropped to 40%, 18 points lower than last year. The confirmation of three judges during Donald Trump’s administration was contentious but in the end an overwhelming conservative majority of 6 to 3 was reached. The conservative orientation of the Court was therefore already known and the sentence emerging from the draft, not yet definitive, he confirms it. Preliminary yes votes would include draft author Samuel Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. The three votes against would be those of Stephen Breyer, Sonia Sotomayor and Elena Kagan while Roberts would seem undecided.
The news obtained by Politico is historic even if in the past suggestions were obtained on sentences that the Court was considering. Analysts are speculating about the possible source. It is believed that it could have come from someone with right-wing leaning who wanted to cement the orientation expressed in the initial considerations. The announcement of the preliminary vote expressed in the draft would become difficult to change for the 5 judges in favor of eliminating the right to abortion. They would be accused of having suffered political pressure.
Others have speculated that the anonymous source is leftist. In this case it would be a question of creating “noise” to put pressure on the judges, especially among the last three nominated by Trump, namely Gorsuch, Kavanaugh and Coney Barrett. The first two could hesitate and change their minds in the final draft. Kavanaugh in particular would be susceptible to reconsideration since before the vote of his confirmation in 2018 he had clarified to Senator Susan Collins (Maine) that previous decisions of the Supreme Court should not be reduced without serious considerations. Kavanaugh had said that previous legal principles “provide stability, predictability and justice.” A law that has lasted for 50 years enters this dynamic.
The three judges appointed by Trump had indicated that “Roe Vs” Wade” was already a law established for 50 years and that they would not touch it. Kavanaugh, in particular, had promised Collins that he would not vote down. The senator is under pressure these days because she provided one of the two decisive votes for her confirmation (50-48). However, the justices of the Supreme Court are ethically responsible only to themselves and have a term of office for life except in the very rare case of impeachment for extremely illegal conduct. So once confirmed they can act independently even if they tend to follow the ideology of the president who appointed them. This independence was confirmed to us in the 2020 election in which the Supreme Court, with the current Republican majority, did not intervene to help Trump in his vain attempt to overturn the result expressed at the polls.
The other effect of the revelation would be to serve as a wake-up call for the upcoming midterm elections in November of this year. The revocation of the right to abortion could become dominant in the political campaign of the Democrats who would shift the center of gravity from the economy towards an issue in their favor. The right to abortion is favored by 2 out of 3 Americans and could prove to be the trump card. Democrats would ignite a political campaign by portraying their Republican opponents as an extremist party that bans books, eliminates women’s rights, and take other extremist positions by trying to eliminate gay marriage, contraceptives, and other positions outside the tradition of the average American.
The cancellation of “Roe Vs Wade” would give the freedom to states to manage the problem without federal controls. More than a score of Republican-dominated states would prohibit abortion even in cases of incest, rape or other situations that could endanger the mother’s life. It would directly affect poor and black women as affluent ones would have the resources to travel elsewhere and terminate their pregnancies if they deem it necessary. It would not directly affect daughters, granddaughters, partners of other women related to members of the Supreme Court or Republican lawmakers who believe they have the power to legislate over women’s bodies. Harris herself reminded us of this during the Senate hearing on Kavanaugh’s confirmation. The then California senator asked him if she could identify a law that empowered the government to make decisions about men’s bodies. Kavanaugh tried to speak, stuttering, but was finally forced to admit that these laws didn’t exist. However, the elimination of the right to abortion also affects wealthy women since it brings them back to a situation of second-class citizens. But that doesn’t seem to worry the likely majority in the Supreme Court or those who support them.