The Supreme Court of the United States has voted to overturn Roe v. Wade, the landmark ruling that legalized abortion across the nation. In a shocking and unprecedented leak reported by Politico Monday night, the nation heard the news of the initial majority opinion written by Justice Samuel Alito and circulated among the other justices back on Feb. 10.
This will be the first time in U.S. history that a constitutionally-guaranteed right, in this case the right of women to an abortion, has ever been removed by the Court.
The decision secretly approved by the justices strikes down both Roe v. Wade, the Court’s 1973 ruling that enshrined the constitutional right to an abortion, and a decision in 1992, in Planned Parenthood v. Casey, that essentially upheld that right.
Alito writes in the leaked ruling: “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed divisions in the country.”
Some progressive leaders in Congress are urging preemptive legislation to block the Court’s opinion before it can take effect. Rep. Cori Bush, D-Mo., said that Senate must toss aside the undemocratic filibuster to immediately pass a law making abortion rights permanent. She also urged an expansion of the number of justices on the Court.
In a statement Tuesday morning, Bush issued a direct challenge to Democrats and the White House:
“Abolish the filibuster. Codify Roe. Expand the Supreme Court. Protect abortion rights by any means necessary.”
She declared, “We need all of the above. This is an emergency.”
Saved by Roe
Once the ruling takes effect, at least half the states in the country are expected to quickly make abortion completely illegal, with poor and working class women and women of color in Republican-governed states having their rights stripped away first.
It would mark a return to the time before Roe v. Wade, when abortion was a crime everywhere.
As late as the early 1970s, for example, police departments and governments around the U.S. were conducting crackdowns on what they called the illegal “abortion industry.” Almost totally forgotten these days are the vicious attacks against women in government-led terroristic campaigns.
The story of one such campaign, in Chicago, was being heavily circulated following the Monday night leak after a report in The Guardian. In the early ’70s, police came crashing down on “Call Jane,” a feminist collective of young women who, since 1965, had provided safe but then illegal abortions to roughly 3,000 Chicagoans per year. The collective, led by the famed civil rights and human rights activist Heather Booth, was raided after two Catholic women told police their sister-in-law planned to have an abortion provided by the group.
A homicide detective assigned to the case traced “Jane” to the South Shore neighborhood. There, police raided an apartment, arrested nearly 50 people for questioning, and tore three women who were actively undergoing abortion treatment away from their procedure and hauled them off to the hospital.
Seven women were charged with 11 counts of performing an abortion and conspiracy to commit abortion. They would soon be known in Chicago’s newspapers as the “Abortion Seven.”
Members of Call Jane protected the women they served and prevented many of them from being arrested by eating the index cards that bore the details of the patients’ information.
There were similar cases across the country where working class women went to incredible and dangerous lengths to access abortion or to protect those who needed them.
A woman working for the Parks Department in Brooklyn found a woman who performed her own abortion bleeding and dying in a ravine in Prospect Park. She was able to get the woman to the emergency room at a nearby hospital where her life was saved.
In 1973, the Abortion Seven, had to be released by prosecutors when the Supreme Court issued Roe v. Wade. With the decision, the Court affirmed that access to safe and legal abortion was a constitutional right. It said that states could not ban abortion before 24 weeks into the pregnancy.
Declaring women’s health illegal, again
The nightmare of state harassment suffered by women in Chicago in the early 1970s may pale in comparison to the level of surveillance and repression that could be deployed against women today in an America where abortion is illegal. The data produced by cell phones, internet browsers, search engines, and social media could be used to prosecute women who seek abortions, and the heaviest crackdowns would undoubtedly descend on poor women and women of color.
“It’s like a thought experiment—to think about what ‘Call Jane’ would look like,” in the modern era, said Cynthia Conti-Cook, a technology fellow with the Ford Foundation told the press Monday. Her work in gender, racial, and ethnic justice looks at how law enforcement could use the data produced by digital infrastructure—smartphones, computers, and social media—to prosecute people who have or even assist others in accessing abortions, should Roe v. Wade be overturned.
“A single mobile phone could reveal the entire collective,” Conti-Cook said. “Just one encounter with law enforcement—a traffic stop, a search, an arrest—could expose the entire network through digital connections.”
If Roe v. Wade is overturned, at least 26 states would outlaw abortion either immediately or as quickly as possible, according to the Guttmacher Institute, a pro-choice research organization. Abortion rights advocates say this will result in desperate people travelling to get abortions in more states where the procedure remains legal, such as Illinois or New York. Some 13 states already have so-called “trigger laws” on the books which will outlaw abortion the minute Roe is officially overturned.
Many people in such places are unlikely to make, nor can they afford, the long, expensive, and health-endangering journeys that would be required. The poor, the young, and people of color will more likely be forced to turn to illegal methods, creating another racist feature in the already racist criminal justice system. This disaster would happen in addition to the possible return of the widespread death and health problems that often came with having an illegal abortion before Roe.
Now, stunned women’s rights activists fear a soon-to-come future where abortion may no longer be legal in most of the U.S. and where prosecutions like that of the “Call Jane” collective will become business as usual.
Women as criminals
A return to illegal abortion will be a horror show in the U.S., the country already with the world’s largest law enforcement apparatus and largest incarcerated population. The new reality will cement the U.S.’ status as the country with the largest number of imprisoned women.
A national organization for defense attorneys has published a report that lays out a future in which the U.S. could undertake “rampant criminalization” and “mass incarceration on an unprecedented scale” in the name of “defense of the unborn.”
“States are laying the groundwork now, and have been laying the groundwork for criminal penalties that are completely different,” than the pre-Roe era, says Lindsay A. Lewis, a New York criminal defense attorney who co-authored a report on abortion for the National Association of Criminal Defense Attorneys (NACDL).
“They are so much more advanced, and so much harsher than what existed before Roe was enacted.”
State legislatures have spent recent decades “modifying their criminal codes” in ways that “completely change the calculus when it comes to what it would mean to go back to pre-Roe times,” according to Lewis.
The lawyers warn that the states where the procedure is illegal are laying the groundwork to go after even those women who travel to other states where it is legal in order to get abortions denied in their home states.
Criminal charges, the lawyers explain, could come from specific abortion laws, but also from criminal codes that penalize “attempted crimes, conspiracies, and accomplices to crime, all relics of laws developed during the U.S.’ so-called ‘war on drugs.’ Those laws could subject a wide range of individuals to criminal penalties if Roe is overturned”, the NACDL report says.
They would include prosecuting people from states where the procedure is illegal who attempt to seek abortions in states where it remains legal.
For example, Louisiana law defines an “accomplice” to a crime as “anyone involved in its commission, even tangentially, whether present or absent if they aid, abet, or even counsel someone.” Lawyers say this could be used against a wide range of spouses, partners, friends, loved ones, or counselors, such as clergy or abortion fund networks, which help direct people or help transport them to clinics in places where abortion is still legal.
International human rights organizations are condemning the attack on Roe v. Wade. In a brief to the Supreme Court, the United Nations special rapporteur on the right to health warned that overturning the ruling and banning or criminalizing abortion is “irreconcilable” with international human rights laws.
Justice Alito says in his ruling very clearly: “We hold that Roe and Casey must be overruled. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
Four of the other Republican-appointed justices—Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—voted with Alito in the conference held among the justices. The three Democratic-appointed justices were opposed, and the allegiance of Chief Justice John Roberts is not yet known.
If, as expected, the draft ruling is adopted by the Court, it would be a ruling in favor of Mississippi in the controversial case allowing the state to ban abortions after 15 weeks. That would allow each state to decide on its own whether to either restrict or ban abortion entirely. It would also enable a future Republican Congress and president to ban abortion entirely across the whole country.
Several Republican-led states have already passed highly restrictive abortion laws in anticipation of the ruling that has now been leaked. Trump supporters are claiming the leaked ruling as a victory for him. Thanks to his appointments, the Court now has a 6–3 right-wing majority.
Politico said it received a copy of the draft opinion from a person familiar with the court’s proceedings in the Mississippi case. The Court declined to confirm what would be the worst security breach in its history, regarding one of its most consequential rulings in history.
Neal Katyal, a former U.S. acting solicitor general who has argued many cases before the Supreme court, said on MSNBC Monday night: “I’ve quickly scanned the draft opinion, and it appears legitimate. This means there was a preliminary vote to fully overrule Roe v. Wade and that a majority of the court agreed. It’s possible the Court could pull back from this position, but this looks like they voted that way after the oral argument.”
Democrats were quick to condemn the ruling. The Democratic National Committee and the party’s senatorial committee chair, Christie Roberts, issued stinging condemnations.
“This Republican attack on abortion access, birth control, and women’s health care has dramatically escalated the stakes of the 2022 election,” Roberts said. At this critical moment, we must protect and expand Democrats’ Senate majority with the power to confirm or reject Supreme Court justices.”
No word has yet emerged on whether the party leadership intends to take up the calls of Rep. Cori Bush to ditch the filibuster, make abortion rights permanent through legislation, or expand the Supreme Court.
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