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      Tuesday briefing: Bombshell leak that could indicate the end of Roe v Wade

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      Tuesday briefing: Bombshell leak that could indicate the end of Roe v WadeIn today’s newsletter: seismic news from the US which could mean 50 years of the right to an abortion are at an end

      Sign up here for our new daily newsletter, First Edition
      Good morning. A truly seismic story has broken in the US overnight: the leak of a draft majority opinion which appears to show that the supreme court has privately voted to overturn half a century of protection for abortion rights.The leak, to the Politico website, was immediately the subject of intense textual and legal analysis by US journalists and experts trying to corroborate its authenticity. It would be the worst security breach in the court’s history.Sign up to First Edition, our free daily newsletter – every weekday morning at 7am.But while caution is obviously the right approach on such a momentous story, there was every sign – from the document’s formatting and footnotes to the distinctive tone of conservative author Justice Samuel Alito – that it is legitimate. There was no comment from the supreme court itself.The court could still vote the other way. But if the end of Roe v Wade, the 1973 ruling which enshrined the constitutional right to an abortion, does happen, it would be news of generational significance for American women and a huge blow for supporters of reproductive rights around the world.With protesters immediately descending on the supreme court building to voice their fury over the news, today’s newsletter explains what’s at stake, and what happens next. That’s right after the headlines.Five big stories
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      Theatre | The curtain will come down on Andrew Lloyd Webber’s West End musical Cinderella less than a year after its opening, causing dismay among some cast members who had no notice of the closure. The show has suffered heavy losses during its lockdown-affected run.
      In depth: the end of the US right to an abortion?What happened?A draft supreme court opinion, apparently by conservative justice Samuel Alito, was leaked to Politico in a story published late Monday night. It appears to show that the court is preparing to rule in favour of Mississippi in a case over whether the state can outlaw nearly all abortions at and after 15 weeks gestation – a direct challenge to the guarantee of abortion rights enshrined in Roe v Wade.The 98-page document, which includes 118 footnotes and a 31-page appendix on historical state abortion laws, was published in full. “Roe was egregiously wrong from the start,” it says. “Its reasoning was exceptionally weak, and the decision has had damaging consequences.”It says Roe v Wade “must be overruled” and goes on: “It is time to heed the constitution and return the issue of abortion to the people’s elected representatives.”What is Roe v Wade?Roe v Wade is the court decision which protects the right to an abortion in the US up to the point a foetus can survive outside the womb, widely regarded as 24 weeks gestation. A full term pregnancy is 39 weeks gestation. The 1973 ruling is among the most controversial in American history and has been subjected to many legal challenges over the year – but survived until now.For more details on the challenge to the law currently under consideration, take a look at Jessica Glenza’s explainer from December.What does the leak tell us about the court’s decision?While the opinion is purportedly a draft, it would have been written following a vote on the question at hand by the court – and indicates that a majority of justices reached the same view as Alito. Politico reported that four other Republican-appointed justices supported the decision, meaning a total of at least five votes on the 9-member court.After such a vote, a justice is assigned the majority opinion and then writes a draft, which is then circulated and subject to edits. It is possible for changes to be made to the opinion, or even for votes to change, before the court’s final ruling, which is expected in the next couple of months.How significant is a leak of a draft supreme court ruling?The Guardian’s Washington correspondent David Smith called the leak “stunning and unprecedented” and said it would be “the worst security breach” in the court’s history. Theories abounded over the likely source of the leak, from a clerk for a liberal justice hoping to raise public pressure on the court before it publishes its decision to a conservative who wants to soften the impact of the decision when it comes – in other words, nobody knows.A tweet from Scotusblog, a respected news and analysis site, said that it was “impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin.”How did reproductive-rights advocates react to the news?With fury. A BuzzFeed reporter posted a video of about 200 protesters outside the court chanting slogans like “abortion is healthcare” and “my body, my choice”. Another video showed somebody urging attendees: “If you feel like fucking screaming, then just scream”.What about politicians?Democrats said that overturning Roe v Wade would be a catastrophe. They were led by House speaker Nancy Pelosi and Senate majority leader Chuck Schumer, who issued a joint statement saying such a move would be “an abomination, one of the worst and most damaging decisions in modern history”.They also immediately sought to make Roe v Wade an issue for crucial upcoming midterm elections: Christie Roberts, Democratic senatorial campaign executive director, said that “At this critical moment, we must protect and expand Democrats’ Senate majority with the power to confirm or reject supreme court justices”. Republicans by turns praised the apparent vote and condemned the leak itself.Now what?It is worth reiterating that it is still possible that votes could change and mean that the apparent draft opinion remains just that – a draft. But if the supreme court does rule along the lines suggested by the leaked document, the consequences will be rapid and hugely consequential.Because the US congress has never enshrined the right to terminate a pregnancy, the overturning of Roe v Wade would mean individual states can immediately make their own decisions over the way forward. Twenty-six of them would be expected to move quickly to do so, with many having “trigger” laws on the books which would automatically come into effect in those circumstances. That means that women in those states would immediately face severe restrictions on their ability to have an abortion, and the US would become one of only four countries to curtail that right in nearly 30 years.What else we’ve been reading
      If you’re working your way through Netflix’s final dump of Ozark episodes, you’ll enjoy Stuart Jeffries’ farewell to “some of the most rewarding TV around”. And if you didn’t spend half the weekend gorging the lot of it, rest assured: it sticks the landing.
      As the question of how the war in Ukraine will end becomes more pressing, Orysia Lutseyvych of Chatham House argues that “a long-term simmering conflict that locks Ukraine in a grey zone of instability” is no better than defeat.
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      Tens of thousands of people have faced deportation from the US over convictions which were later overturned. Sam Levin’s piece on Sandra Castaneda, who spent 19 years in prison for a murder she didn’t commit and is still facing deportation, justifies the term ‘Kafkaesque’.
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      The front pagesThe Guardian leads with “Patel faces mass legal action from Ukrainians stuck in visa backlog”. The Telegraph also focuses on the war in Ukraine with “Johnson: Ukraine is ready for its finest hour”. The Mail has “Where have our GPs gone?”, while the Times goes with “Rising inflation to blow £7,000 hole in pensions”. The i newspaper has “Tories hit by infighting on eve of election” and the Daily Express leads with “Boris’ right to buy plan is a vote winner”. The Mirror reports on the Madeline McCann disappearance with “Maddie prime suspect ‘a danger to society’”. The Financial Times has “Johnson enlisted for last-ditch bid to wrestle Arm into listing”. And the Sun says “Queen’s guards let fake priest stay night”.Today in FocusThe Wagatha Christie case – part twoAs the so-called ‘Wagatha Christie’ trial approaches, neither side is backing down from a case that has legal fees running into the millions, says media editor Jim Waterson.Cartoon of the day | Martin RowsonThe UpsideA bit of good news to remind you that the world’s not all badGood news has been thin on the ground in Ukraine these past few months – but one bright spot has been the generosity of those horrified by the actions of Russia and what it has meant for the citizens of the country. Take this story about a nursing home in Donbas that the Guardian first wrote about in April – that story inspired a Ukrainian expat in New Orleans to raise the funds necessary to rehome the elderly residents in a disused school. “The biggest chunk of the money will go towards making the accommodation suitable for the old people,” said the nursing home’s director, Ievhen Tkachov.Sign up here for a weekly roundup of The Upside, sent to you every SundayTopicsAbortionFirst EditionRoe v WadeUS politicsUS supreme courtHealthLaw (US)newslettersReuse this content More

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      The supreme court’s coming abortion ruling may spark a new era of US unrest | Stephen Marche

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      The supreme court’s coming abortion ruling may spark a new era of US unrestStephen MarcheThere’s a strong risk that the case will spark anger and violence – whether the court overturns Roe v Wade or not Civil wars don’t always begin with gunfire. Sometimes civil wars begin with learned arguments. In April 1861, Confederate forces shot on Fort Sumter, but at the time even Jefferson Davis, the Confederate president, had doubts about whether the event mattered all that much. It was, he claimed, “either the beginning of a fearful war, or the end of a political contest”; he could not say which. During the decades that preceded the assault on Fort Sumter, complex legal and political fissures had been working their way through the United States, slowly rendering the country ungovernable and opening the path to mass violence.The US is the middle of another such legal crackup, this time over the question of abortion. The courts today face the crisis American courts faced in the 1850s: is there any way to make laws for a country with furious and widening differences in fundamental values?Tell us: have you had to travel to another US state for an abortion? Read moreThis summer, when the US supreme court makes its long-expected decision in Dobbs v Jackson Women’s Health Organization, it will inevitably alienate half the country. In anticipation of the overturning of Roe v Wade, several states have passed draconian anti-abortion laws, in the expectation that they won’t be challenged. Idaho has already imitated the Texas law which allows private citizens to sue anyone who helps a woman procure an abortion, a law that the supreme court has refused to overturn.Two American blocs are emerging. In the south and parts of the west and midwest, abortion laws are about to return to where they were in the 1950s. The rest of the country has already set itself in opposition to these laws. The division will not stay considerate and respectful, particularly in areas where liberal and conservative states neighbour one another. In anticipation of a post-Roe world and a flood of out-of-state patients, abortion providers have established a series of abortion clinics in Illinois, across the river from more conservative Missouri. Oregon recently invested in a $15m fund for medical refugees traveling from Idaho for abortions.There are, right from the beginning, two reactions to the new division. The first is the use of force, as in the case of a 26-year-old Texan woman, Lizelle Herrera, who was recently arrested for murder for allegedly self-inducing an abortion. The local district attorney’s office ultimately released her without charge, explaining that “in reviewing applicable Texas law, it is clear that Ms Herrera cannot and should not be prosecuted for the allegation against her”. To be clear, current applicable Texas law doesn’t apply to Herrera’s case. When it does, they will charge people like her with murder. How far will the forces opposing abortion take a custodial approach? Do they want to set up a DEA-style birth police? Any enforcement mechanism will also probably be highly ineffective. After billions of dollars spent on the war on drugs, the average price of a hit of heroin on the street is between $5 and $20. Women with means who want abortions are going to get them.Texas advocates file new legal challenge to near-total abortion ban Read moreThe second reaction to an America divided along abortion lines will be interstate conflict. Missouri is leading the way here. A recent bill proposed a travel abortion ban, explicitly focused on clinics in Illinois. This looks, on the face of it, like a straight violation of the 14th amendment, but the supreme court is a partisan institution and interpretation of the constitution now follows the partisan affiliation of the justices. They’ll come up with something.No matter what decision the supreme court makes, civil unrest will follow. Anti-abortion activists will feel that their political system has failed them no matter what the court does. They have sacrificed everything – the dignity and integrity of their party, the value of their national institutions – in the name of getting enough justices on the court to enact this one legal change. If the court upholds Roe v Wade, they will quite naturally feel betrayed. If the court overturns Roe v Wade, they will discover a fact the new Texas law has inadvertently revealed: that the criminalization of abortion doesn’t work. Their basic assumption, that the government can outlaw abortion, is simply untrue. At first, the Texas law appeared to cause abortions to decline by half. But quickly the numbers reasserted themselves. The decline is less that ten percent. Women went out of state or bought chemical abortions. The overturning of Roe v Wade will makes women’s medical treatment more difficult and impersonal and humiliating. It won’t change the abortion rate significantly.Meanwhile, from the other side, an overturning of Roe v Wade will be experienced as oppression pure and simple, especially given the number of justices appointed by presidents who did not receive the popular vote. In November 1860, five months before Fort Sumter, in the immediate aftermath of Lincoln’s election, a judge in South Carolina announced that the state would no longer register indictments in federal court. Andrew Magrath, in a deliberate act of rejection, removed his judicial robe and folded it over his chair. He would now serve as a justice of his state, not his country. The audience recognized the gravity of the act. As one commentator at the time noted: “Here was a great political movement precipitated, not by bloody encounters in the street or upon the field, but by a deliberate and reasoned act in the most unexpected and conservatives of all places – the United State courtroom.” From that moment on, there were two legal systems. All that remained was the war. A similar breakdown in the legal system of the United States is already apparent.Needless to say, this entire conflict is futile and stupid. Abortion in the United States is in rapid decline without the negligible effects of criminalization. The number of procedures dipped 19% between 2011 and 2017. If activists want fewer abortions, there are plenty of strategies that are vastly more effective than making them illegal. Canada, which has no federal laws of any kind on abortion, has a fraction of the abortion rate of the US.But that’s not really the point. Abortion is only a stand in for a fundamental conflict in political vision: morality against policy, community values against personal agency. There are two countries, at least, in the United States. The legal system is only catching up.
      Stephen Marche is the author, most recently, of The Next Civil War: Dispatches from the American Future
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      Ketanji Brown Jackson says Roe v Wade ‘the settled law of the supreme court’ – live

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      Key events

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      Psaki tests positive for Covid-19

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      Jackson: Roe v Wade is ‘settled law’

      8.58am EDT

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      Ketanji Brown Jackson hearings continue

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      In response to Hawley’s insinuations that she was not tough enough on defendants in child sexual abuse cases, Jackson has explained in detail how sentencing works, saying, “What a judge has to do is determine how to sentence defendants proportionately consistent with the elements that the statutes include, with the requirements Congress has set forward … Judges are doing the work of assessing in each case a number of factors that are set forward by Congress, all against the backdrop of heinous criminal behavior … and Congress has given judges factors to consider.”
      Jackson said she has to consider the facts and the recommendations of government and the probation department in sentencing, adding, “You’re questioning whether or not I take them seriously or if I have some reason to handle them in a different way than my peers or in a different way than other cases, but I assure you I do not.”
      Hawley said: “I am questioning your discretion and judgment.” He asked her why she was not tougher on an 18-year-old in a case involving child sexual abuse images.
      Jackson explained that she was following guidelines and responding to specific facts in the case, and sentenced him to three months in federal prison.

      5.31pm EDT

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      Josh Hawley, Republican senator from Missouri, started his questions with detailed descriptions of child sexual abuse cases and accusing Jackson of not being tough enough on offenders. Here’s the response from a White House spokesperson, saying Halwey’s remarks are “embarrassing” and a signal to QAnon conspiracy theorists:

      Andrew Bates
      (@AndrewJBates46)
      Hawley’s embarrassing, QAnon-signaling smear has been fact checked by: @washingtonpost, @nytimes, @AP, @CNN, @ABC, and @NRO:https://t.co/JDHAWH7l3dhttps://t.co/JbPnmE7lbIhttps://t.co/8DuoUg80hGhttps://t.co/fA4hUmeqGyhttps://t.co/fA4hUmeqGyhttps://t.co/UVCtmAImJ2

      March 22, 2022

      5.17pm EDT

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      Martin Pengelly

      Josh Hawley, a Republican senator from Missouri, is now questioning Jackson. There was an interesting nugget from Punchbowl News this morning, on Hawley and why he is pressing his attack on the judge over her past sentencing of offenders convicted over child sexual abuse images. More

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      Sarah Weddington, attorney who won Roe v Wade abortion case, dies aged 76

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      Sarah Weddington, attorney who won Roe v Wade abortion case, dies aged 76Texan lawyer and Linda Coffee won landmark 1973 case, safeguarding right now under threat from US supreme court

      How dismantling Roe v Wade would threaten other rights
      Sarah Weddington, an attorney who argued and won the Roe v Wade supreme court case which established the right to abortion in the US, has died aged 76.Susan Hays, a Democratic candidate for Texas agriculture commissioner, announced the news on Twitter on Sunday and the Dallas Morning News confirmed it.“Sarah Weddington died this morning after a series of health issues,” Hays wrote. “With Linda Coffee, she filed the first case of her legal career, Roe v Wade, fresh out of law school. She was my professor … the best writing instructor I ever had, and a great mentor.“At 27 she argued Roe to [the supreme court] (a fact that always made me feel like a gross underachiever). Ironically, she worked on the case because law firms would not hire women in the early 70s, leaving her with lots of time for good trouble.”The court ruled on Roe v Wade in 1973. Nearly 50 years later the right it established is under threat from a supreme court packed with hardline conservatives, in part thanks to a Texas law that drastically restricts access and offers incentives for reporting women to authorities.In 2017, speaking to the Guardian, Weddington predicted such a turn of events. “If [Neil] Gorsuch’s nomination is approved, will abortion be illegal the next day? No. One new judge won’t necessarily make much difference. But two or three might.”After steering Gorsuch on to the court – and a seat held open by Senate Republican leader Mitch McConnell when Barack Obama was president – Donald Trump installed Brett Kavanaugh and Amy Coney Barrett. Barrett replaced the late Ruth Bader Ginsburg, a champion of women’s rights.Weddington found her way to Roe v Wade soon after graduating from law school at the University of Texas. Represented by Weddington and Coffee, Norma McCorvey became the plaintiff known as “Jane Roe” in Roe v Wade. McCorvey became an evangelical Christian and opponent of abortion. She died in 2017.In her Guardian interview, Weddington discussed arguing the case in federal court. “I was very nervous,” she said. “It was like going down a street with no street lights. But there was no other way to go and I didn’t have any preconceived notions that I would not win.”She won, but the case continued.“Henry Wade, the district attorney, unwittingly helped us,” she said. “At a press conference, he said, ‘I don’t care what any court says; I am going to continue to prosecute doctors who carry out abortion.’ There was a procedural rule that said if local elected officials continue to prosecute after a federal court had declared a law unconstitutional, there would be a right to appeal to the supreme court.”‘Historical accident’: how abortion came to focus white, evangelical angerRead moreBefore the court in Washington, Weddington said: “It was impossible to read the justices’ faces. The attorney on the other side started by saying something inappropriate about arguing a case against a beautiful woman. He thought the judges would snicker. But their faces didn’t change a bit.“I had to argue it twice in the supreme court: in 1971 and again in 1972. On 22 January 1973 I was at the Texas legislature when the phone rang. It was a reporter from the New York Times. ‘Does Miss Weddington have a comment today about Roe v Wade?’ my assistant was asked. ‘Why?’ she said. ‘Should she?’“It was beginning to be very exciting. Then we got a telegram from the supreme court saying that I had won 7-2 and that they were going to air-mail a copy of the ruling. Nowadays, of course, you’d just go online.“I was ecstatic, and more than 44 years later we’re still talking about it.”Weddington later revealed that she had an abortion herself, in 1967. “Just before the anaesthesia hit,” she said, “I thought: ‘I hope no one ever knows about this.’ For a lot of years, that was exactly the way I felt. Now there’s a major push to encourage women to tell their stories so people will realise that it is not a shameful thing. One out of every five women will have an abortion.”Weddington predicted: “Whatever else I do in my life, the headline on my obituary is always going to be ‘Roe v Wade attorney dies’.”In fact she achieved much more, as Hays detailed in her tweets on Sunday. “Those career doors shut to her led her to run for office, getting elected as the first woman from Travis county in the [Texas legislature] in 1972 (along with four other women elected to the House: Kay Bailey, Chris Miller, Betty Andujar and Senfronia Thompson).“She was general counsel of the United States Department of Agriculture under [Jimmy] Carter and enjoyed her stint in DC. Federal judicial nominations for Texas were run by her as a high-ranking Texan in the administration.“A Dallas lawyer she knew sought a bench. She had interviewed with him while at UT law. He’d asked her, ‘What will we tell our wives if we hire you?’ She told him he was wasting their time and hers and walked out of the interview. He did not get the judgeship.“Ever the proper preacher’s daughter, she would never tell me who the lawyer was. People don’t know that about Sarah. She was such a proper Methodist minister’s daughter. One of the few people I couldn’t cuss in front of.”Hays also paid tribute to Weddington as a teacher and a member of a “Great Austin Matriarchy” that also included the former Texas governor Ann Richards and the columnist Molly Ivins.In her Guardian interview, Weddington indicated she was at peace with being remembered for Roe v Wade. “I think most women of my generation can recall our feelings about the fight,” she said. “It’s like young love. You may not feel exactly the same, but you remember it.”TopicsRoe v WadeAbortionUS politicsUS healthcareUS supreme courtUS constitution and civil libertiesLaw (US)newsReuse this content More

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      The supreme court’s abortion ruling is even more unsettling than it may seem | Moira Donegan

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      The supreme court’s abortion ruling is even more unsettling than it may seemMoira DoneganIn allowing Texas’s outrageous abortion ban to stay in place, the court signaled that it is willing to sacrifice its own legitimacy and power in order to destroy Roe Don’t be fooled by the supreme court’s nominal hedging on its endorsement of SB8, the Texas abortion ban that deputizes private citizens to sue anyone who assists in an abortion after six weeks’ gestation. In a ruling on Friday, the court held that a lawsuit by Texas abortion providers could go forward – but only on narrow grounds. Only those state officials responsible for licensing medical providers may be sued, the court ordered – no one else involved in the state’s practical maintenance of SB8 is liable. The ruling said, for instance, that the providers could not sue court clerks, those bureaucrats tasked with actually docketing the lawsuits that would enforce SB8.For providers, it seems that the best possible outcome for the suit now is that they may be able to secure an injunction preventing medical providers from being delicensed. These perplexing limits placed by the court on which parties can be sued to challenge SB8 ensures that though the suit against the law will be at least partly allowed to go forward, it will be largely toothless.In the meantime, SB8 will remain law. Women in Texas are effectively banned from securing a legal abortion in the state, even though the still-standing Roe v Wade decision says that they have a right to one. It’s likely that SB8 will remain in effect at least for the duration of Roe’s lifetime – meaning that Texas women will not be able to obtain legal abortions after six weeks for the foreseeable future. Many of the initial media responses to the court’s opinion emphasized that since the suit was allowed to go forward, on technical grounds, the ruling was a narrow win for the abortion providers. But in reality Friday was a massive win for the rightwing Texas government, and for anti-choice forces nationwide.That SB8 has been allowed to take effect – now for the second time – by the supreme court reflects the justices’ eagerness to gut abortion rights. The fact of the matter is that the court is already set to overturn Roe and allow states to ban abortion outright. That much was clear to anyone who listened to last week’s oral arguments in Dobbs v Jackson Women’s Health, a case surrounding the constitutionality of a 15-week ban in Mississippi, which devolved into grim misogynist spectacle as the Republican appointees held court on the supposed ease of giving infants up for adoption and their own robust comfort with overturning long-settled precedent.That ruling is scheduled to come down in late May or early June. When it does, a slim majority of states are expected to ban abortion, either immediately or very soon thereafter. That means that soon SB8 – and the copycat bills that it has inspired in states like Florida and Arkansas – won’t be necessary for the anti-choice lobby to achieve their aims. Instead of concocting an elaborate enforcement process in which rogue anti-woman vigilantes enforce their abortion bans, the states will be able to enforce their bans themselves.SB8, then, and the supreme court’s embrace of it, can be understood not only as a harbinger of the justices’ deep contempt for the abortion right, but also of their childish impatience to exert this contempt upon American women. They can’t even wait six months. They want to ban abortion right now. In pursuit of this goal, the supreme court has proven itself willing to undermine its own capacity to oversee state laws, to enforce federal supremacy, and to protect constitutional rights.The anti-choice substance of the court’s decision in SB8 was not surprising; its embrace of Texas’s tactics perhaps was. Aside from its direct attempt to undermine women’s rights, SB8 also took aim at judicial authority. By banning abortion long before viability, the law flouted the supreme court’s precedents in Roe and Planned Parenthood v Casey. But that much a slew of vehemently anti-choice justices would probably forgive: all six of the Republican appointees clearly believe that Roe was wrongly decided, and at least five of them (all but Roberts, who seems more trepidatious) appear eager to overturn it. But in its novel enforcement mechanism, SB8 sought specifically to evade judicial review – not just to give the court an opportunity to overturn its own precedent, but to make it so that within Texas borders supreme court precedent didn’t matter.In her dissent, Justice Sonia Sotomayor compared SB8 to the views of John C Calhoun – a nineteenth-century pro-slavery campaigner who argued that states have the right to nullify federal laws that they do not like. America fought its civil war in no small part over this question. By first allowing the SB8 to go into effect, in September, and then by gutting the lawsuit against it this Friday, the supreme court has, shockingly, endorsed a scheme to undermine its own power, and granted a state the ability to evade federal precedent. Nullification, it seems, is back in style.For years, court watchers have wondered whether the justices’ institutionalist instincts would overcome their misogynist ones: if the Court had to choose between maintaining its own power and legitimacy, and overturning Roe, which would it choose? Now, it seems, we have our answer.
      Moira Donegan is a Guardian US columnist
      TopicsUS politicsOpinionRoe v WadeUS supreme courtLaw (US)AbortioncommentReuse this content More

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      How dismantling Roe v Wade could imperil other ‘core, basic human rights’

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      How dismantling Roe v Wade could imperil other ‘core, basic human rights’Supreme court appears inclined to severely curtail or overturn Roe v Wade after hearing Mississippi case, which could have affect gay rights, contraceptives and fertility treatments Constitutional scholars in the US said a litany of rights, from same-sex marriage and sex to birth control and in vitro fertilization, could come into question if the country’s highest court moves to overrule or weaken Roe v Wade.The supreme court last week heard arguments in the case Dobbs v Jackson Women’s Health Organization, which centers on whether the state of Mississippi can ban abortion at 15 weeks gestation, roughly nine weeks before bans are permitted under current law.The Mississippi case is widely regarded as the most important abortion rights case since Roe v Wade, when the supreme court effectively legalized abortion nationally in 1973. A decision in the Dobbs case is expected June 2022.Although supreme court opinions are notoriously difficult to predict, a majority of justices on the conservative-leaning court appeared inclined to severely curtail or overturn Roe v Wade, which protects abortion rights in states hostile to the procedure.Legal scholars warned that the impacts of such a move would likely be widespread, because abortion rights are rooted in the same implied constitutional right to privacy that is the foundation for other intimate personal decisions Americans now take for granted.Gay rights, contraceptives, certain fertility treatments and even interracial marriage, “are imperiled because they’re all rooted in that right to privacy,” Melissa Murray, a law professor at New York University law school and an expert in constitutional, family and reproductive rights law, told the Guardian.“All of this has been implied because they’re understood to be core, basic human rights,” said Murray. “You don’t need the state to recognize them because they are vested in you by virtue of being a human.”Currently, states are prevented from banning abortions before a fetus can survive outside the womb, a concept known as “viability”. But at the hearing on 1 December, a majority of justices appeared ready to uphold Mississippi’s law, which would require either invalidating the “viability” standard or overturn Roe v Wade entirely.In arguments, justices pointed to several ways they may reinterpret the Roe v Wade decision. Some, such as Justice Clarence Thomas, were skeptical there is a right to privacy and were swayed by the lack of an explicit reference to the right in the constitution, a concept known as “textualism”.“If we were talking about the second amendment, I know exactly what we’re talking about,” said Thomas. “If we’re talking about the fourth amendment, I know what we’re talking about because it’s written. It’s there.”That argument could be paired with one pushed forward by conservatives, such as Mississippi solicitor general Scott Stewart, who argued a right to abortion is not grounded in the “history or tradition” of the country.“A right to abortion [is] not grounded in the text,” said Stewart. “It’s grounded on abstract concepts that this court has rejected in other contexts as supplying a substantive right”.The theory underlying that right to privacy is called “substantive due process”, or the doctrine that the constitution protects both the procedures of due process, such as how criminal law is applied, and “substantive” guarantees of life, liberty and property.“If you ask where rights come from in the US constitution there’s basically two general answers,” said Mary Ziegler, a law professor at Florida State University and a historian who has studied abortion rights since Roe v Wade. “There’s the rights spelled out in the text of the constitution,” such as rights to bear arms or against unreasonable search and seizure, “and there’s other rights, like the right to marry and the right to parent that are not in the text of the constitution”.Those are rights established by substantive due process. For example, in 1965 the court struck down birth control bans for married couples in Griswold v Connecticut. In 1967 with Loving v Virginia, the court invalidated anti-miscegenation laws that barred interracial marriage. In 1972 in Eisenstadt v Baird, the court found people who were not married also had a right to birth control. In 1973, the court recognized a right to terminate a pregnancy.“These rights of parental autonomy are underpinnings of the right to privacy, marriage is included in this,” said Murray. “In a later case, the state says marriage [and] procreation are basic civil rights of man.”Cases based in substantive due process continued into the modern era, when in 2003 the court invalidated anti-sodomy statutes in Lawrence v Texas, and established a right to same-sex conduct. In 2016, the court found same-sex couples also had a right to marry in Obergefell v Hodges.Attorneys for Jackson Women’s Health Organization responded on the principle of substantive due process when quizzed on this principle by Thomas.“If I were to ask you what constitutional right protects the right to abortion, is it privacy? Is it autonomy? What would it be?” asked Thomas.“It’s liberty, Your Honor,” said Julie Rikelman, litigation director for the Center for Reproductive Rights, which represented the abortion clinic.Briefs to the court in Dobbs directly challenge that principle, such as from the conservative, anti-abortion group Texas Right to Life. Attorneys for the group, the conservative legal activists Adam Mortara and Jonathan Mitchell, argued the court does not necessarily need to overturn decisions protecting gay rights.“But neither should the court hesitate to write an opinion that leaves those decisions hanging by a thread,” wrote Mortara and Mitchell. “Lawrence and Obergefell, while far less hazardous to human life, are as lawless as Roe.” The same brief argued women could control their reproduction by refraining from sex. Neither Mitchell nor Mortara responded to an interview request.Until the supreme court issues a decision, it is unclear exactly how rights protected by substantive due process might be affected. However, scholars consider same-sex and reproductive rights to be the most vulnerable because there is an active political campaign to circumscribe them. By contrast, there is little contemporary criticism of interracial marriage.If Roe v Wade is overruled, “It will be on the ground it was a right that was untethered from constitutional text,” said Murray. If that view prevails on the court, rights to contraception, gay rights and in vitro fertilization could also be quickly implicated, since, “all of these things are untethered from constitutional text and historically were not available in the US”.What’s more, the history of abortion rights may provide a roadmap for other rights to be hobbled, even if substantive due process prevails.Murray offered the example of a 2017 case, in which three conservative justices, led by justice Neil Gorsuch, argued states could restrict birth certificates of same-sex parents. Gorsuch argued there appeared to be nothing unconstitutional about a “biology-based birth registration regime” where only one same-sex parent would be listed on the certificate.“It is a really good example of how they have dismantled Roe piecemeal and incrementally could be applied to these other rights,” said Murray.TopicsRoe v WadeUS supreme courtLaw (US)US politicsAbortionfeaturesReuse this content More

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      ‘Historical accident’: how abortion came to focus white, evangelical anger

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      ‘Historical accident’: how abortion came to focus white, evangelical angerA short history of the Roe decision’s emergence as a signature cause for the right Public opinion on abortion in the US has changed little since 1973, when the supreme court in effect legalized the procedure nationally in its ruling on the case Roe v Wade. According to Gallup, which has the longest-running poll on the issue, about four in five Americans believe abortion should be legal, at least in some circumstances.Yet the politics of abortion have opened deep divisions in the last five decades, which have only grown more profound in recent years of polarization. In 2021, state legislators have passed dozens of restrictions to abortion access, making it the most hostile year to abortion rights on record.This schism played out in the US supreme court on Wednesday, when the new conservative-dominated bench heard oral arguments in the case of Dobbs v Jackson Women’s Health Organization, the most important abortion rights case since Roe.In somber arguments, justices questioned whether the state of Mississippi should be allowed to ban nearly all abortions at 15 weeks gestation, nine weeks earlier than the current accepted limit. While the ruling, expected by the end of June next year, is far from a foregone conclusion, justices in the conservative majority appeared to signal their support for severely restricting abortion access, a right Americans have exercised for two generations.The divisive question among the conservative majority appeared to be whether abortion should be restricted to earlier than 15 weeks, weakening Roe, or if the precedent set in Roe should be overturned entirely.Summarizing Mississippi’s argument, the conservative justice Brett Kavanaugh, who was controversially nominated to the court by Donald Trump in 2018, said “the constitution is neither pro-life nor pro-choice … and leaves the issue to the people to resolve in the democratic process.” If the issue is returned to the states, 26 states would be “certain or likely” to ban or severely restrict abortion access.The religious right in the US has been laying the foundations of this decisive challenge to abortion rights for years. According to historians and researchers, it has taken decades of political machinations for the campaign to reach this zenith. The movement has intersected with nearly every major issue in American politics for the last five decades, from segregation to welfare reform to campaign finance.The conservative anti-abortion movement “was a kind of historical accident”, said Randall Balmer, a professor of American religious history at Dartmouth University and author of the recently released book Bad Faith: Race and the Rise of the Religious Right.It wasn’t until Republican strategists sought to “deflect attention away from the real narrative”, which Balmer argues was racial integration, “and to advocate on behalf of the fetus”, that largely apolitical evangelical Christians and Catholics would be united within the Republican party. Balmer argues that advocacy was nascent in 1969.Although the supreme court decision in Brown v Board of Education called for an end to racial segregation in schools in 1954, many schools continued de facto segregation 14 years later.Then, the supreme court weighed in again, and ordered schools to integrate “immediately”. This prompted white southerners to form “segregation academies”, whites-only private Christian schools which registered as tax-exempt non-profit charities. African American parents in Mississippi sued, arguing this was taxpayer-subsidized discrimination. They won, and in 1971, tax authorities revoked the non-profit status of 111 segregated private schools.In Balmer’s view, revoking the non-profit status of segregated private schools catalyzed evangelical Christian leaders, but even in the early 1970s defense of racial segregation was not a populist message. However, defense of the fetus could be.Republican operations began to test abortion as a vessel for the collective anxieties of evangelical Christians, and Roe as a shorthand for government intrusion into the family after the sexual revolution of the 1960s. Eventually, abortion became the reason for evangelicals to deny the Democratic president Jimmy Carter, himself an evangelical Christian, a second term.Evangelical opposition to abortion “wasn’t an anti-abortion movement per se”, said Elmer L Rumminger, an administrator at the then whites-only Christian college Bob Jones University, said in Balmer’s book. “For me it was government intrusion into private education.”At the same time, the anti-feminist Republican activist Phyllis Schlafly was connecting anxiety about women’s changing roles in society with abortion. In a 1972 essay, she described the feminist movement as “anti-family, anti-children, and pro-abortion,” and the writing of contemporaneous feminists as “a series of sharp-tongued, high-pitched whining complaints by unmarried women”.By the 1978 midterm congressional elections, Paul Weyrich, one of the architects of modern conservatism, was testing abortion as a campaign issue with evangelical Christians with a small fund from the Republican National Committee. Roman Catholic volunteers distributed hundreds of thousands of leaflets in church parking lots in Iowa, New Hampshire and Minnesota, and their efforts prevailed. Four anti-abortion Republicans ousted Democrats.The groundwork laid by Schlafly and Weyrich made “Roe shorthand for a host of worries about sex equality and sexuality”, wrote Mary Ziegler, a law professor at Florida State University and author of After Roe: The Lost History of the Abortion Debate.“Even as late as August 1980, the Reagan-Bush campaign wasn’t certain abortion would work for them as a political issue,” said Balmer. However, as Reagan sailed to victory, he was carried in part by religious voters hooked on the promise of a constitutional amendment to ban abortion. When a constitutional amendment failed, a new strategy took hold: control the supreme court.Historians said segregation was only one part of a complex and multifaceted movement, which has long seen itself as a human rights campaign. By the 1970s, “there was an anti-abortion movement which was influential and pretty effective in the states that was ready for the new right to work with,” said Ziegler.In the coming years, Reagan would recast the politics of reproduction through a new racist prism, as he introduced the mythical stereotype of the “welfare queen”. The image allowed politicians to portray “all single mothers as persons of color and all persons of color as dependent on public assistance”, wrote the reproductive rights activists Loretta Ross and Rickie Solinger in their 2017 book Reproductive Justice: An Introduction.The image divorced family wellbeing and welfare support from abortion access and rights. Thus, the “broad middle ground” of issues that anti-abortion and pro-choice voters agreed on became “firmly partisan”, said Julia Briggs, author of How All Politics Became Reproductive Politics, and professor and chair of women, gender and sexuality studies at University of Massachusetts, Amherst.By the 1990s, anti-abortion activists had professionalized. So called “right to life” organizations rallied the base, and religious law firms dedicated themselves to fighting abortion in courts. The supreme court weighed in on abortion again in 1992, in another watershed case called Planned Parenthood of Southeastern Pennsylvania v Casey. The case allowed states to restrict abortion, as long as such restrictions did not create an “undue burden” on the right to abortion and served the purpose of either protecting the woman’s health or unborn life.States hostile to abortion passed “Trap” laws, or targeted regulations of abortion providers, which required abortion clinics to become the “functional equivalents of hospitals”, according to legal scholars. States instituted 24-hour waiting periods for abortion, state-mandated inaccurate information and invasive sonograms.Many clinics went out of business as they struggled to meet the expensive new requirements, and pregnant people struggled to obtain abortions as they had to travel further and spend more to find a provider.These laws would also play an outsized role in the Dobbs hearing. Conservative justices debated whether they could keep the “undue burden” standard while jettisoning a central tenet of Roe, that women can terminate a pregnancy until a fetus can survive outside the womb, or “viability”.“Why is 15 weeks not enough time?” asked Chief Justice John Roberts, a conservative, in the hearings.The politics of reproduction spurred new debates on acceptable restrictions on birth control, stem cell research and sex education during the George W Bush administration. But it was the election of Barack Obama, America’s first Black president, that supercharged Republican opposition.In 2010, the Tea Party swept the midterm elections. More extreme candidates entered Congress and statehouses through the practice of challenging incumbents in districts gerrymandered to be reliably Republican. And, in a decision not typically thought of as an anti-abortion victory, the chief counsel for National Right to Life successfully argued a supreme court case that would unleash vast sums of dark money into American elections – Citizens United v Federal Election Commission.“The anti-abortion movement, over time with other conservative allies, worked to change things like the rules of campaign finance for the conservative movement,” said Ziegler. “Anti-abortion lawyers played an integral part in cases like Citizens United.”By the time Donald Trump ran for president, evangelical Protestants had become more anti-abortion than the Catholic voters who were once the bedrock of anti-abortion advocacy. Seventy-seven per cent of white evangelical Christians say the procedure should be illegal, compared with just 43% of Catholics, according to the Pew Research Center.Trump harnessed the anger of white evangelicals for a victory in 2016, with a mix of hardline anti-abortion politicsand xenophobic nativism. Trump abandoned his 1999 stance as “very pro-choice”, saying there should be “punishment” for women who have abortions, and promised to nominate conservative supreme court justices who would “automatically” overturn Roe v Wade.Today, overwhelmingly white “Christian nationalist” voters believe their religion should be privileged in public life, a goal to be attained “by any means necessary”, according to social researchers such as Indiana University associate professor Andrew Whitehead.Supreme court decisions are notoriously difficult to predict, but abortion rights activists believe Wednesday’s hearing shows that conservative justices are ready to significantly weaken or perhaps overturn Roe v Wade. If that happens, young, poor people of color will disproportionately suffer, forced to carry unwanted pregnancies to term. Such an outcome is so severe human rights advocates have said state abortion bans would violate United Nations conventions against torture and place the US in the company of a shrinking number of countries with abortion bans.On Wednesday, the court’s three outnumbered liberal justices argued neither the science, the enormous consequences of pregnancy nor the American polity had changed since the court last decided a watershed abortion rights case. But, because of the work of anti-abortion politicians, the makeup of the court’s bench had.“Will this institution survive the stench that this creates in the public perception that the constitution and its reading are just political acts?” asked the liberal justice Sonia Sotomayor. “I don’t see how it is possible.”TopicsAbortionRoe v WadeUS politicsRaceUS supreme courtfeaturesReuse this content More

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      Ending Roe v Wade is part of a long campaign to roll back democracy itself | Jill Filipovic

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      Ending Roe v Wade is part of a long campaign to roll back democracy itselfJill FilipovicThe demise of abortion rights is the outcome of years of Republican work to make it harder for people to vote and stack the bench with rightwing judges American democracy is at the breaking point, and a supreme court ready to gut or overturn Roe v Wade is the latest warning sign. A radical minority is accumulating ever more power, and they’re threatening to undermine equal rights under the law, basic human freedoms, and democracy itself.Republicans are quietly rigging election maps to ensure permanent rule | David PepperRead moreOn Wednesday, the supreme court heard arguments in a case challenging Mississippi’s ban on abortions after 15 weeks of pregnancy, even for rape and incest survivors. Under the longstanding legal framework of Roe v Wade and Planned Parenthood v Casey, two of the supreme court cases that shape abortion rights in the US, states cannot outlaw abortion before the point of fetal viability, when the fetus can survive outside of the woman’s body (states can put restrictions on abortion before that point, so long as those restrictions don’t pose an “undue burden” on women seeking abortions). The Mississippi law violates that longstanding supreme court precedent.Yet the court agreed to hear it anyway, which was the first bad sign – why hear a case that so clearly flies in the face of what the court has already ruled? Wednesday’s oral arguments only contributed to the sense of doom, as a majority of the justices seemed ready and willing to overturn Roe.This didn’t happen by accident. The rightwing stranglehold on the courts has been a long-term project achieved by devious means. Republicans blocked Barack Obama from appointing dozens of judges to the federal bench, leaving those slots open for Donald Trump to fill. He stacked the courts with conservative reactionaries, many of whom were so unqualified that they failed to get the basic endorsement of the American Bar Association (ABA). Instead of appointing qualified candidates over rightwing stooges, the Trump administration simply cut the ABA out of the judicial vetting process.The most egregious of these Republican blockades came when Obama tried to appoint Merrick Garland to the supreme court seat vacated by Antonin Scalia. The right cried foul: it was wrong to change the balance of the court, they said, and it was an election year and therefore unfair to allow Obama a supreme court appointment; voters should decide the next president to pick a supreme court judge.A majority of voters wanted Hillary Clinton to have that role. But our undemocratic and archaic electoral college rules handed the victory to Donald Trump – the second time in less than two decades that the winner of the majority vote lost the White House.Trump, who ran on a promise of appointing anti-abortion judges who would overturn Roe v Wade, set about doing just that. He appointed Neil Gorsuch to the seat that should have been Garland’s. Then he appointed Brett Kavanaugh, despite the judge facing credible accusations of sexual assault. Finally, and most insultingly, Trump and his Republican Senate allies rammed through the appointment of the explicitly anti-abortion Amy Coney Barrett to the seat vacated by the feminist icon Ruth Bader Ginsburg – in his last year of office, and despite the supposed rule about a president letting the voters decide before an election.Trump voters – a minority of Americans in both 2016 and 2020 – are about to get what they want: an America in which women and girls are forced into pregnancy, childbirth and motherhood; an America in which women are second-class citizens, not entitled to control over the very bodies they live in, forced to risk their lives in the name of “pro-life” misogyny.The rest of us are stuck dealing with these minority religious views imposed on us.Strong majorities of Americans support abortion rights and do not want to overturn Roe. And in any case, the supreme court is supposed to be a bulwark against tyranny, an institution that defends and upholds constitutional rights, not one that punts those rights to the states.This court is not that. And that’s because of the shameful rightwing devastation of American democracy. Three members of the conservative supreme court majority, after all, were appointed by a traitorous president who fomented an attempted coup against the United States, and who has continued to undermine the electoral process by claiming that the last election, which he lost fair and square, was stolen. His party has devolved into a cult of personality, so tied to one narcissistic tyrant that it didn’t even bother releasing a political platform in the last presidential election. And because the Republican party knows it will lose if it has to play on an even playing field, its members have been systemically undermining voting rights for years.The demise of abortion rights in the US is the outcome of years of anti-democratic organizing to make it harder for people to vote, gerrymander districts, pull power from various elected offices when Democrats win them, and stack the bench with rightwing judges who will allow it all to happen.It’s terrifying. And of course forcing women into subservience and traditional roles is part of this process – that’s been the strategy in authoritarian nations throughout history, and it’s a pattern we’re seeing play out now, as the same nations that are scaling back democratic norms and processes are also going after women’s rights.That American women are facing a hostile supreme court and are looking at a future without abortion rights – and potentially without the constitutional right to contraception – isn’t a matter of law or “life”. It’s a sign of a democracy in decline.
      Jill Filipovic is the author of OK Boomer, Let’s Talk: How My Generation Got Left Behind
      TopicsUS politicsOpinionAbortionUS supreme courtRoe v WadeLaw (US)RepublicanscommentReuse this content More