US Supreme Court set to eradicate abortion rights

A leaked draft decision by Justice Samuel Alito attacks the Roe v. Wade decision of 1973, the only federal protection for abortion rights in the country

May 03, 2022 by Peoples Dispatch
The movement advocating for abortion access has long been advocating for passing the Women’s Health Protection Act (WHPA), which would render all of these restrictions illegal. (Photo by Lorie Shaull)

As per a draft decision leaked yesterday and published in Politico, May 2, the Supreme Court is set to overturn the historic Roe v. Wade ruling of 1973, thus eradicating abortion rights in the United States. 

The draft decision was penned by Justice Samuel Alito, a conservative George Bush-appointed judge. He did not hold back on his criticism of Roe, which is the only federal protection for abortion rights for women across the United States. “Roe was egregiously wrong from the start,” he wrote. “Its reasoning was exceptionally weak, and the decision has had damaging consequences.” 

The ruling of Roe was based on the “Due Process Clause” of the Fourteenth Amendment of the US Constitution, which enshrines a “right to privacy”. The court had determined that this “right to privacy” protects a women’s right to choose to have an abortion. Alito disputed this in his draft decision. As he wrote, the Due Process Clause indicates that any right that is not guaranteed in the Constitution must be “deeply rooted in this Nation’s history and tradition”. Alito does not believe that abortion falls under this category, writing that “an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.” In reality, abortions were legal and widely practiced in the US until around 1880, when they were outlawed in what some view as a reaction against a growing feminist movement. 

If this draft decision becomes final, women in conservative states will be at the mercy of politicians who have expressed a desire to eliminate abortion. Right-wing politicians are carrying out a massive attack on abortion in the US. Some consider 2021 to have been the “worst year for abortion rights” in many years, with 108 restrictions on abortion passed throughout the country. Since the Roe v. Wade decision, 1,338 restrictions have been enacted, 44% of those within the last decade. 

In Texas, conservative politicians generated nationwide outrage when they passed SB 8, which bans abortions after six weeks, before many women even know they are pregnant. What sets SB 8 apart from previous abortion resistrictions is “civil enforcement”: the law places a $10,000 bounty on the heads of anyone “aiding or abetting” an abortion, from the abortion provider themselves to simply whoever drove the woman to the clinic. Since SB 8, other abortion bans have been passed, in states such as Mississippi, or recently in Oklahoma, which also has a similar “civil enforcement” clause. 

The movement advocating for abortion access has long been advocating for passing the Women’s Health Protection Act (WHPA), which would render all of these restrictions illegal. The Senate recently voted down WHPA after two conservative Democrats joined the entire Republican Party in voting against the legislation. The vast majority—79%—of people in the US support legal access to abortion in most cases. “It is, quite frankly, an embarrassing reflection of the impotence of Democratic Party leadership that two Senators are allowed to decisively impact legislation instead of being disempowered for voting against the interests of their constituents,” wrote socialist feminist magazine Breaking the Chains. 

Hundreds of protesters, mostly women, gathered outside of the Supreme Court yesterday evening, chanting “When abortion rights are under attack, what do we do? Stand up, fight back!” and “Abortion is health care!” Several people have gathered throughout the day on May 3, with an even larger turnout expected this evening. Several of the largest socialist organizations, such as the Democratic Socialists of America and the Party for Socialism and Liberation have called protests in several cities. These upcoming protests will build on the months of organizing against abortion restrictions that was catalyzed by SB 8, and fueled by events such as the arrest of Lizelle Herrera in Texas, charged with murder for an alledged abortion. 

The draft decision is not final, and time will tell if a mass movement in the streets can sway the court.