Just over a week after a draft U.S. Supreme Court opinion landed on the country outraging millions, began the questions on what might be next. If, the concern was, women seeking control over their own healthcare was now in the hands of the state, could other settled law be next on the chopping block?
Last week, a draft opinion written by U.S. Supreme Court Justice Samuel Alito that would overrule Roe v. Wade, a 1973 landmark ruling legalizing abortion, was leaked. The opinion, likely to mirror a soon to come affirmative SCOTUS decision, stirred huge emotions. The right, which has fought against legal abortions for decades, cheered the conservative Alito’s 98 page opinion, while the left was stunned that settled law could be so easily obliterated.
Could the same fate, people wondered, be waiting in the wings on other precedents? Could Obergefell vs. Hodges, a recognized right to marriage equality be on thin ice? Might Lawrence vs. Texas, the law guaranteeing the right to privacy by consenting adults including same-sex adults, be in the crosshairs? Or could the fundamental right to contraception, a high court ruling known as Griswold vs. Connecticut be threatened? Even federal law on interracial marriage, which the court ruled on in 1967, suddenly become uncertain?
While overturning Roe v. Wade had been whispered about ever since ex-President Trump stocked the high court with a trio of rock-solid conservative justices, the matter was purely theoretical. But a court with a potential 6-3 conservative majority in this matter, makes the sweeping away of the 49-year-old Constitutional healthcare guarantee a near certainty. “I have to say there’s a difference between being intellectually prepared and experiencing it happening,” said Colorado Attorney General Paul Weiser. “It’s just a sad day for a democratic republic.”
While there may be a bit of legal cleanup—phrases polished, words added, others deleted—before the high court officially votes on it early this summer, it’s expected that Roe v. Wade is on a high-speed path to becoming a relic. Planned Parenthood, an organization that provides healthcare for millions of women, called Alito’s opinion “horrifying and unprecedented” and confirmation of its worst fears. It also predicted that the draft opinion is just one more step in the right’s “plan to ban abortion nationwide.”
In his draft opinion, Alito is firm on what the Constitution says or doesn’t say. “It is time,” he believes, “to heed the Constitution and return the issue of abortion to the people’s elected representatives.” But the document, written 225 years ago by 44 men, also was absent anything about the rights of women. They could neither vote nor own property. They certainly had no say in their personal health care autonomy. Alito’s desires to return the matter to the states may be nothing more than a simple glideslope delivering the decision to conservative-leaning legislatures.
Currently abortion remains legal in the U.S., but a number of states have passed highly restrictive measures regulating the procedure and a number of others are in the process.
The Mississippi law that the high court was set to rule on, bans abortion after 15 weeks of pregnancy. Oklahoma has taken it a step farther, banning abortion after six weeks of pregnancy. A current count indicates that 26 states are either certain or likely to ban abortion if Roe vanishes. Each is controlled by Republican legislatures.
Colorado remains steady among most surrounding states in which women’s health rights are protected and abortion remains legal. The state also recently enacted the Reproductive Health Equity Act which guarantees access to reproductive care before and after pregnancy and bans local governments from imposing their own guidelines.
As a result of Colorado’s laws protecting women’s health care rights means the state will become a port in this legal storm. “People may choose to travel to Colorado,” said Weiser. “Other states will be in a very difficult situation… we will have to adapt.”
While Alito’s opinion has both emboldened the right and threatened America’s left—not to mention women on both sides of the political aisle who favor a woman’s right to choose—legal scholars are even more apprehensive about the omission of anything in the leaked document that addresses either rape or incest.
If passed, will this ruling force a woman to carry her rapist’s child to term? Can a girl—essentially a preteen child — be forced to bear the baby of a father or brother? As Alito’s opinion now states, the answer is unclear.
What is clear is that once this opinion is engrained in law, said Weiser, is that there will be casualties. “A lot of people are going to be harmed,” he said in a recent telephone interview. “Poor women will have to make terrible choices on how they handle these situations.” He, like millions of others, fears that the options those with no means will be left with, may be illegal and dangerous abortions.
But said the first-term attorney general, as a result of Alito’s ruling and his reasoning that the Constitution mentions nothing about abortion, a conservative court may have its eyes on other guaranteed rights. “One of the takeaways on this opinion,” said Weiser, is “when you say abortion is not mentioned in the Constitution, neither are other things.” We are in open season for more questions for established precedence,” he said. We are now living in a legal fog of “uncertainty and anxiety.”
If and when the Court rules to strike down Roe, it may result in the proverbial law of unintended consequences. The respected Scientific American predicted that without Roe, negative health care ripples would include worsening mental health issues and long-term poverty. Others say that over the long term there may also be higher incarceration rates, an increase in suicides and higher rates of drug abuse.
One immediate repercussion is already percolating. “I worry a lot about how this decision will undermine public confidence,” said AG Weiser. “The Court already has a low opinion,” he said. “If people don’t believe this (decision) was the product of thoughtful deliberations, they’re going to be more critical of the court.”
