The End of Roe Could Be Just the Beginning

Last week, before the leak of a Supreme Court draft opinion by Justice Samuel Alito decreeing the demise of Roe v. Wade and Planned Parenthood v. Casey changed the world, The Wall Street Journal ran a curious editorial about a “ferocious lobbying campaign” to change the minds and the votes of the justices in the Mississipi abortion law case at the center of Alito’s draft. “The particular targets are Justices [Amy Coney] Barrett and Brett Kavanaugh, the two newest Justices,” the editorial read, suggesting that Chief Justice John Roberts was working hard behind the scenes to peel them off from the dark side — to a compromise ruling that would preserve abortion rights, at least for the foreseeable future.

“We hope he doesn’t succeed—for the good of the Court and the country,” the editorial board declared, recalling the time the chief crafted a compromise ruling a decade ago that saved Obamacare. If Roberts’ charm offensive failed this time around, the editorial suggested, then a true conservative would write the opinion of the court, and abortion law would, as true conservatives have been demanding for decades, definitively be a matter for individual states to decide. “Our guess is that Justice Alito would then get the assignment,” the board surmised.

That guess now sounds like a leak of its own. And conservatives aren’t talking about it, preferring instead to decry the disclosure of Alito’s draft opinion, while papering over how extreme and maximalist his reasoning for ending Roe is — or how closely his rationale tracks with arguments that the religious right, anti-abortion advocates, and social conservatives have made for decades. Republicans are even circulating talking points that play down Alito’s language and paint them as the reasonable, consensus-builders on abortion policy, unlike those radical Democrats who don’t even have the votes to codify Roe into law. “Republicans must be the opposite, demonstrating compassion and kindness toward all people, mother and child, born and unborn,” a memorandum by Senate Republicans’ campaign arm, obtained by Axios, said. (There’s no mention in the memo that a nationwide abortion ban is in conservatives’ sights once Roe falls.)

Yet Alito’s draft opinion is a remarkable document in its own right. Its substance, rather than the leak itself, matters because Alito, out of all the six conservatives who dominate the Supreme Court, is the closest to a committed, Republican culture warrior there is — not just by dint of his voting record on issues big and small, but also the things he says in open court or when he’s had a glass of wine or two. As when he stated, during a virtual gathering of the Federalist Society, that religious liberty and gun rights are under siege in America. Or when he became the first among his peers to wonder aloud about critical race theory in public schools while the court was in session. Or his stated reservations about trans-inclusive language as infringement of freedom of speech.

His anti-Roe opinion, likewise, reads like a barn-burner meant to be broken up into Fox News soundbites of red meat: “Roe and Casey must be overruled.” The reasoning in the original 1973 ruling “was exceptionally weak, and the decision has had damaging consequences.” Roe stood for an “exercise of raw judicial power,” igniting “a national controversy that has embittered our political culture for a half-century.” And Alito comes close to saying that Roe silenced, or canceled, conservative voices who think differently: “The Court short-circuited the democratic process by closing it to the large number of Americans who dissented in any respect from Roe.”

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