I argued Planned Parenthood v. Casey in 1992. The Supreme Court’s Roe opinion is worse than I imagined.
Righteous outrage and anger is the only appropriate response.
In 1992, I argued Planned Parenthood v. Casey before the Supreme Court, the landmark case that has been widely credited with saving Roe v. Wade. While Casey permitted states to enact additional restrictions on abortion so long as they do not place an undue burden on women, the court ensured that abortion was legal in every state until viability, usually between 24 and 28 weeks of pregnancy. Soon, that may no longer be true.
» READ MORE: Read the Supreme Court's decision that overturned the abortion protections of Roe v. Wade
The draft opinion by Justice Samuel Alito that was leaked to Politico this week overrules both Casey and Roe. And while this draft opinion may change before it is finally issued, I highly doubt that there will be significant changes because there are five ultra-conservative justices on this court who are committed to eradicating women’s reproductive freedoms.
I have fully expected that Roe and Casey would be overruled since the day Donald Trump was elected president and I have been on the stump for the last year urging pro-choice Americans to be prepared for a post-Roe world. But Justice Alito’s draft is worse than I had imagined. Righteous outrage and anger is the only appropriate response. Here’s why:
Women’s lives ignored
In the 98-page opinion, the court ignores the significant impact of its ruling on women’s lives and health. By removing federal constitutional protection for women, states will now be free to ban all abortions at any stage of pregnancy, and at least 25 states will do so. Many states already have enacted laws that are ready to take effect with the demise of Roe and Casey.
The sheer number of women and families affected is staggering. According to the Guttmacher Institute, 58% of U.S. women of reproductive age — or 40 million — live in states that are “hostile” to abortion. Hundreds of thousands of them will be unable to legally obtain abortions where they live. As a result, women will have to travel hundreds of miles or risk prosecution for obtaining abortion pills.
The least powerful — low-income women, teenagers, rural women, LGBTQ+ people, and Black and brown women who have less access to health care — will face dire health consequences.
» READ MORE: Abortion restrictions are white supremacy in action
Importantly, the draft opinion fails to acknowledge that removing federal constitutional protection will undermine the ability of pregnant women to make important decisions about their lives, including whether, when, and with whom they choose to become parents. Eliminating Roe will undermine women’s ability to participate equally in all aspects of society.
Precedent squashed
In a radical departure from stare decisis — which establishes the practice of following precedent for past decisions — the Alito opinion throws out 50 years of previous decisions solely because these five justices disagree with the original opinion.
Over the last five decades, Roe has been reaffirmed repeatedly by justices who were nominated by both Democrats and Republicans because its reasoning was sound and workable. To cavalierly reject these rulings highlights that the five ultra-conservative justices care more about rewarding the politicians who placed them in power than respecting the rule of law.
A road map for more
Last, the draft opinion provides a road map for these highly conservative justices to remove federal constitutional protection for a host of other rights beyond abortion. The right to use contraception, the right to marry a person of one’s choosing, whatever their race or gender, and the right to make decisions about one’s children’s education or upbringing all flow from the due process clause of the 14th Amendment.
» READ MORE: What Supreme Court leak confirmed: This is no longer the America we grew up in
Like abortion, neither contraception nor interracial or gay marriage is specifically mentioned in the Constitution. And state laws prohibited them until modern times. The Supreme Court’s rationale for eliminating constitutional protection applies equally to these rights that we take for granted, and right-wing politicians in states across the country are already moving to restrict birth control and LGBTQ rights.
Abortion may be the first right to fall, but this court is unlikely to stop there.
What you can do
Although many consider Pennsylvania to be a safe state for abortion, it is only safe because Gov. Tom Wolf is willing to veto restrictive laws. But Wolf will not be in power indefinitely, and the state legislature wants to put bans on abortion via an amendment to the state constitution to bypass the gubernatorial veto.
To remain safe going forward, Pennsylvania needs to elect another pro-choice governor and flip the state House or Senate from red to blue. Electing a pro-choice U.S. senator will also get us closer to protecting all women’s access to care. It is time to send a message (and a retirement package) to all the state and federal policymakers who support abortion bans and have worked to undermine women’s freedoms.
Kathryn Kolbert is a reproductive-rights attorney who cofounded the Center for Reproductive Rights. She is the coauthor of Controlling Women: What We Must Do Now to Save Reproductive Freedom.