After A Decades-Long Anti-Abortion Crusade, The Right Insists Draft Opinion Is No Big Deal

To hear Republicans tell it, it was just another Monday.

The leaked draft opinion, showing that a majority of Supreme Court justices voted to overturn Roe v. Wade, was the almost-culmination of a decades-long right-wing battle. After incremental progress, high-visibility defeats and bloody-knuckled election fights, the anti-abortion movement is getting exactly what it wanted. 

Yet many lawmakers, commentators and publications aligned with that movement, rather than popping champagne over the photocopied draft, are instead taking to the public square with gussied-up versions of “you’re being hysterical and this is not a big deal.” 

The political calculus behind tempering a generational victory is obvious: these actors have a vested interest in quelling the backlash to what would be an extremely unpopular ruling — a potential tsunami of rage that could endanger even Republicans’ lopsided advantage going into the midterms. 

It’s a lot easier to head off that anger by insisting that crybaby liberals are being melodramatic about returning a “highly divisive” issue to the states than acknowledging the reality: that such a ruling would set the stage for significant changes to American life. Efforts to push a nationwide abortion ban are already underway, and a whole constellation of privacy rights — from same-sex marriage to contraception — have been placed on the chopping block through Justice Samuel Alito’s reading of the Constitution’s protections on privacy.

The right-wing arguments about why the overturning of abortion rights would not inevitably lead to the overturning of other rights that stem from the same interpretation of the Constitution are as weak as their motives transparent. 

“First, they ban abortion. Next will be a contraception ban. Then a ban on same-sex and even interracial marriage. Soon we will all be living in ‘The Handmaid’s Tale,’” the Wall Street Journal editorial board sneered. “That’s the parade of horribles that Democrats and the media are trying to sell Americans after the leak of a draft Supreme Court opinion that would repeal a constitutional right to abortion.”

The board’s reasoning behind its dismissal? Rights like gay marriage and contraception are politically popular! That Roe, too, is popular — 54 percent of Americans support upholding it to 28 who want it overturned, per a recent poll — is somehow irrelevant to the argument. Majorities of Americans have consistently supported keeping abortion legal, a seeming non-factor to the conservative majority of the Supreme Court. 

The board also claims: “In the marriage cases, there are also what the Court calls ‘reliance interests’ at stake. Hundreds of thousands of Americans are married to people of the same sex. The Supreme Court isn’t going to invalidate those unions and disrupt so many lives.”

The Court’s comfort with disrupting the lives of the nearly one in four women who get abortions would seem to bely that confidence. 

Conservative Berkeley law professor Orin Kerr made much the same argument on Twitter. Conservative justices, he argued, just feel differently about abortion rights than they do the right to marry who you choose. 

He also used the Wall Street Journal gambit of parsing polls on abortion into “legalizing in all circumstances,” “legalizing in some circumstances” and “illegal in all circumstances” to make opinion look more divided than it is — when in reality, the right to abortion under Roe and Casey was already “legal in some circumstances,” putting the majority of respondents in clear support of them. 

Libertarian Megan McArdle, a Washington Post columnist, also argued that the rights to contraception and interracial marriage are too enmeshed in American life for the Court to dream of overturning them. Once again — so is abortion! 

In a slight deviation of the theme, in a piece in the Washington Examiner, opinion writer Quin Hillyer berates liberals for not simply taking Alito, the reported author of the opinion, at his word. Alito does, after all, write many times in the draft that the decision should not be extrapolated to the wider universe of privacy rights. 

Alito grounds this in no legal theory, instead suggesting that rights like gay marriage — gay marriage! — do not involve the same moral quandaries or incur the same stiff opposition that abortion does. It takes a willing blindness to pretend that there’s no American contingent, certainly not one that often also fiercely opposes abortion rights, that considers gay marriage sinful and wrong. 

Then you have the Sen. Ted Cruzes (R-TX) of the world. Cruz is hewing to an older GOP line, one that long preempted the draft leak. 

“If the Court does in fact overturn Roe v. Wade, that doesn’t mean abortion is immediately illegal all over the country,” Cruz said in an interview on Fox Business. “What it means is that the decision-making on abortion returns to the elected legislatures, primarily in the states. That means in bright blue states like New York or California, at least in the short term, it is certain that abortion will remain universally available on demand.”

“Immediately” and “short term” are doing some heavy lifting here — all the heavier as some of Cruz’s peers are candidly discussing their interest in passing a nationwide abortion ban, which the draft opinion suggests that at least Alito and perhaps all five of the majority would support.