B2 EZ BD THE WASHINGTON POST.SUNDAY, MAY 8 , 2022Democrats are pushing that would codify Roe,
arguing that it does not provide sufficient
“conscience” protections for antiabortion
health providers. Those objections could be
accommodated.)
But while such legislation could fix the
abortion restrictions, it couldn’t undo the
legal reasoning in the draft opinion, which
will fester and reach other cases. The court’s
test of “deeply rooted” traditions could now
be used to attack Griswold and much more.
The draft opinion is not unaware of this and
indeed protests too much in response: “We
emphasize that our decision concerns the
constitutional right to abortion and no other
right,” Justice Samuel Alito writes. “Nothing
in this opinion should be understood to cast
doubt on precedents that do not concern
abortion.” He reasons that other statutes do
not involve the destruction of “fetal life,” so
the facts of other cases would be different.
That’s true insofar as it goes. Yes, a case on,
say, contraception would involve different
facts, but different cases always involve differ-
ent facts; the application of the same legal
principles to different facts is an essential
part of how law works. And here, the legal
principle adopted by the draft opinion —
whether rights are historically grounded in
the traditions of the American people — is
unfortunately a road map to overruling Gris-
wold, because it calls into question the right
to privacy. That paves the way, in theory, for
states to ban the use of birth control.
Marriage equality, guaranteed by the 2015
decision Obergefell v. Hodges (written by
Republican appointee Anthony M. Kennedy),
is now also threatened. There is obviously no
tradition of same-sex marriage per se, butconfirmation process. But Bork’s ghost lives
on in this draft, showing that conservatives
did not tack away from his extreme views but
were simply biding their time until they had
the votes to act on his vision. The draft attacks
Roe as “egregiously wrong” and says, in words
that Bork very well might have written, that
the right to abortion lacks a constitutional
foundation because it is neither explicitly
mentioned in the text nor “deeply rooted in the
Nation’s history and traditions.”
Those despairing about this draft opinion
should remember that the courts do not
monopolize abortion politics. Congress could
fix the problems such a decision would cause.
It can pass a statute guaranteeing the right to
abortion, thereby codifying Roe. Such a law
would be quite hard for the court to overturn.
The obvious rejoinder is that such a statute,
while supported by a majority in the House
and Senate, could not overcome a filibuster.
But there is no reason to maintain a filibuster
here. Republicans already went “nuclear” and
scrapped the filibuster for Supreme Court
nominees (beginning with Neil M. Gorsuch). If
the Senate can skip the filibuster to confirm
three justices who would not only vote to
overrule Roe but decide hundreds of other
significant matters, it certainly should be able
to skip it for the relatively more minor task of
creating a legislative fix for a single one of their
decisions. The effort could even be bipartisan.
Certainly senators who voted for nominees
believing that they would uphold Roe v. Wade
as settled precedent — Sen. Susan Collins
(R-Maine) comes to mind — should be doing
everything possible to make such legislation
the law of the land. (Collins, however, said this
week that she would not vote for the billT
he leaked draft of a Supreme Court
decision to overrule Roe v. Wade has
created all sorts of shock waves. It an-
nounces the greatest setback for reproductive
rights in more than a generation, profoundly
affecting women across our land. It would
bless laws like the Mississippi one at issue in
the case, which restricts abortion to the first 15
weeks of pregnancy and includes no rape or
incest exception. It would even bless flat bans
on abortion. Perhaps the only comfort one can
take in this draft opinion is that it is a draft,
meaning there is a chance that things might
change before the official decision. But the
odds of that are probably low, and this opin-
ion, should it become law, would profoundly
alter the rights Americans hold dear, and not
just on abortion. Rights to marriage equality,
contraception and much more are now at risk.
The draft opinion is the fruit of a decades-
long campaign by conservative legal activists.
In fact, it reads as if it were written by the
conservative judge and failed 1987 Supreme
Court nominee Robert Bork. The reasoning in
Roe v. Wade — decided 7 to 2, and written by
Republican-appointed Justice Harry Black-
mun, who was joined by four other Republi-
can appointees to the court — was grounded
in the right to privacy. That right, in turn, was
first articulated by the court in a 1965 deci-
sion, Griswold v. Connecticut, which struck
down a Connecticut law that banned the sale
of birth control to married couples. Bork had
railed against the right to privacy, calling
Griswold “unprincipled” and Roe “an uncon-
stitutional decision, a ... wholly unjustifiable
judicial usurpation of state legislative au-
thority.”
Such views led to his undoing in the SenateKennedy’s brilliant opinion allowed the court
to reach deeper into the American tradition of
liberty to generalize about the rights and
freedoms at stake. The same move made in
the draft opinion about abortion, however,
could be used to overturn Obergefell. If that
were to happen, same-sex marriage would
again be illegal in the many states that still
have bans on their books (including Indiana,
which rejected an effort to remove its ban in
2020).
Of course, it is possible that the court won’t
do any of this. But here’s a disconcerting fact:
Of the Supreme Court decisions that con-
servatives have been agitating to overturn,
Roe was the hardest target. And yet the court
started with it. In doing so, it also had to
reckon with the many other abortion cases at
the court since Roe. Most notably, in 1992’s
Planned Parenthood v. Casey, the Supreme
Court, in an opinion written by three Republi-
can appointees (Justices Sandra Day O’Con-
nor, Kennedy and David Souter), said that
even if Roe was problematic, it was the law of
the land and the court’s credibility with the
American people depended on maintaining
it. The justices said that social expectations
had crystallized around the decision and that
generations of Americans had come to rely on
Roe, and so it should not be overruled.
These words and principles govern us no
longer. And if five justices can toss away such
considerations when it comes to Roe, we all
have to ask: What’s next?
Twitter: @neal_katyalNeal Kumar Katyal, a law professor at
Georgetown University, formerly served as acting
solicitor general of the United States.The Supreme
Court’s decision on
Roe v. Wade could
invite challenges to
other rulings, such
as those involving
same-sex marriage
or contraception.In the leaked
draft opinion,
Justice Alito
channels
Robert Bork’s
views on Roe,
writes Neal
Kumar KatyalJABIN BOTSFORD/THE WASHINGTON POSTThe right to privacy — not just abortion — is on the chopping block45 percent of the population but 90 percent of
pregnancy-related deaths.
Despite the fact that he has two children of
his own, Alito displays astonishing ignorance
about what many pregnant people and their
families face in the wealthiest nation in the
world, a nation that spends just $500 per child
on early-childhood care — less than 2 percent
of what Norway does. The consequences of
that ignorance will be the difference between
life and death, or profound suffering and
unnecessary hardship, for so many.
I, for one, would love to live in the country
that the draft opinion describes, where preg-
nancy is physically and economically safe,
valued and supported. Unfortunately, we live
in this one — where even a wanted pregnancy
and birth can be among the most economi-
cally disruptive experiences most people can
expect to face. In this America, reproductive
autonomy remains a pillar of women’s equali-
ty and livelihoods. Until Alito has lived in our
house, he has no business knocking down its
walls.leave in the United States.
Alito’s draft opinion also peddles the notion
that “the costs of medical care associated with
pregnancy are covered by insurance or gov-
ernment assistance.” Most of the states likely
to ban abortion, should Roe be overturned, are
the same states that have refused to expand
Medicaid coverage. And even those families
lucky enough to have employer-based health
coverage can end up facing thousands in
medical bills for childbirth: For a birth free of
complications, a worker with employer-based
insurance can expect to pay $4,500 on average
in out-of-pocket costs.
That’s assuming, of course, that they make
it out of pregnancy alive. The United States
has the dubious distinction of having the
worst maternal mortality rate among wealthy
countries. And appalling racial disparities in
resources and health care make pregnancy
more life-threatening for some than for oth-
ers. In Mississippi — the state whose abortion
ban is currently before the Supreme Court in a
case that the Alito draft addresses — the
maternal mortality rate for Black women is
nearly three times higher than that for White
women. And in Washington, where the Su-
preme Court sits, Black people make up just1978, pregnant workers have been continually
denied reasonable accommodations they
need to keep working safely or are outright
fired for being pregnant, leading to more than
50,000 charges of pregnancy discrimination
in the last decade alone. Because most inci-
dents of discrimination aren’t reported, that
number represents a fraction of the problem.
These trends persist even though women now
make up a majority of the workforce, and 85
percent of female workers will become preg-
nant at some point, with most continuing to
work through their pregnancies — and be-
yond.
That brings us to Alito’s next assertion. He
writes that “leave for pregnancy and child-
birth are now guaranteed by law in many
cases.” The Family and Medical Leave Act
guarantees 12 weeks of leave, but that leave is
unpaid. Going three months without pay is a
luxury few new parents can afford. And even
that minimal guarantee covers only those who
work for large employers and have at least a
full year on the job, meaning roughly half the
workforce is left out. Paid leave is hard to come
by; just 1 in 4 workers has access to paid familyPREGNANT FROM B1Alito wants us to believe that ‘modern developments’ ease pregnancy’s burdensTwitter: @RiaTabaccoMarRia Tabacco Mar is director of the ACLU’s
MATT MCCLAIN/THE WASHINGTON POST Women’s Rights Project.In the draft opinion
on Roe v. Wade,
Justice Samuel
Alito writes that
pregnancy isn’t the
financial strain it
once was, thanks to
“modern
developments” such
as family leave and
nondiscrimination
laws.