One image says everything about Roe vs Wade being overturned

The faces in this image say something striking about one of the most controversial moments to rock US politics in years.

Samuel Alito. Neil Gorsuch. Brett Kavanaugh. Clarence Thomas. Amy Coney Barrett.

Five names, four of them belonging to men. Those are the individuals who appear to have up-ended five decades of abortion law in the United States, in a move that will change the lives of millions of women.

The US is currently in something of a political uproar over a leaked draft decision from the nation’s Supreme Court, written by Justice Alito.

The draft would overrule the landmark 1973 Supreme Court decision in Roe vs Wade, which has underpinned abortion rights in the US for the last 50 years.

Under the precedent set by Roe, and a subsequent decision in the 1992 case Planned Parenthood vs Casey, governments across the US can only ban abortion from the point of “viability” onwards, meaning the time at which a foetus can realistically survive outside the womb. That threshold is reached at about 23 or 24 weeks of pregnancy.

Overturning those rulings would allow state governments to ban abortion far earlier.

Two caveats here: a draft ruling is not a final ruling, and the justices could conceivably change their minds (though it’s unlikely); and we don’t know for certain precisely how each justice voted on the matter.

But we can make a very educated guess.

Overturning Roe requires the votes of at least five justices. The court is currently split 6-3 in favour of its conservative wing, with one of the six – Chief Justice John Roberts – acting as a bit of a swing vote.

The five in question, then, are likely Justices Alito, Gorsuch, Kavanaugh, Thomas and Barrett. A source has told Politico – which published the leaked draft – they were indeed the key votes.

From left to right: Supreme Court Justices Brett Kavanaugh, Amy Coney Barrett, Samuel Alito, Neil Gorsuch and Clarence Thomas.

Three of the five justices were appointed by Donald Trump when he was president, with George H.W. Bush and his son George W. Bush appointing the others.

So women will now face dramatically tighter restrictions on abortion throughout much of the US because of five justices, four of them men, and all of them appointed by men.

Incidentally, the law the court was considering, and which is serving as the catalyst for Roe’s demise, came from the state of Mississippi, whose Governor Tate Reeves is also a man.

The Mississippi law seeks to ban abortion from 15 weeks. Another law, recently passed by Texas, would ban it from six weeks, when many women have no idea they’re even pregnant. The Governor there is Greg Abbott, another man.

The fact that women’s rights are being decided by oh so many men has not escaped the notice of pro-choice advocates.

“As a cis man who cannot bear children, my duty right now is simply to protect reproductive rights,” said Congressman Jamaal Bowman, a Democrat from New York.

“This should have been the same duty for Justices Alito, Thomas, Gorsuch and Kavanaugh. Yet they are committed to doing the opposite.

“Let’s be clear. Four cis men and in total five conservative people in the nation’s highest court are set to make abortions harder to access.”

The legal argument

Of course, one’s gender doesn’t change the merits of a legal argument. Justice Alito and his four colleagues believe the law is on their side.

“Roe was egregiously wrong from the start,” Justice Alito writes in the draft.

“Its reasoning was exceptionally weak, and the decision has had damaging consequences. Far from bringing about a national settlement of the abortion issue, Roe and Casey have inflamed debate and deepened division.

“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.

“We hold that Roe and Casey must be overruled.”

So what’s his logic?

Roe recognised access to abortion as one of the US Constitution’s “unenumerated rights”, meaning it was a right protected by the Constitution without being specifically mentioned in the document.

According to that ruling, a clause in the Fourteenth Amendment to the Constitution, which provides a right to “privacy”, protects a woman’s personal right to choose whether or not to have an abortion.

The decision did allow for some government regulation of the practice, but disallowed any outright bans before the third trimester.

Justice Alito argues the court was wrong in Roe and access to abortion should not be considered an unenumerated right. He cites the Glucksberg test – a reference to another landmark case in 1997, which held that only unenumerated rights “deeply rooted in this nation’s history and tradition” were protected by the Constitution.

According to Justice Alito, abortion is not sufficiently rooted in US history. Thus, it is not protected by the Constitution.

He also argues that it would be more democratic for states to decide how to regulate abortion via legislation.

The US Supreme Court. Picture: Andrew Harrer/Bloomberg via Getty Images

‘Egregious breach of trust’

Overnight Chief Justice Roberts confirmed the draft opinion published by Politico was ”authentic”, though he stressed it wasn’t final.

He described the leak as a “betrayal of the confidences of the court” and “an egregious breach of trust”, and said there would be an investigation into the matter.

Unlike in politics, leaks to the media from the Supreme Court are exceedingly rare.

“This lawless action should be investigated and punished to the fullest extent possible. The fullest extent possible,” said Senate Minority Leader Mitch McConnell, the most senior Republican in Congress.

“If a crime was committed, the Department of Justice must pursue it completely.”

Florida Governor Ron DeSantis, widely seen as a contender for the Republican presidential nomination in 2024 (especially if Mr Trump doesn’t run), compared the leak to the Capitol riot on January 6, 2021.

“You want to talk about insurrection? That’s a judicial insurrection,” Mr DeSantis said.

Congressman Anthony Sabatini, apparently a man of few words, simply said: “Arrest the leaker.”

Anger on the political left, meanwhile, focused on the substance of the document.

President Joe Biden called Justice Alito’s argument “way overboard” and “radical”.

“Roe has been the law of the land for almost 50 years, and basic fairness and the stability of our law demand that it not be overturned,” he said.

“It will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose. It will fall on voters to elect pro-choice officials this November. At the federal level, we will need more pro-choice senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law.”

Senate Majority Leader Chuck Schumer, another leading Democrat, has promised there will be a vote in the Senate on that idea of codifying Roe vs Wade in law, which would set a federal standard preventing states from banning abortion before viability that doesn’t rely on the Supreme Court’s interpretation of the Constitution.

“This is as urgent and real as it gets. We will vote to protect a woman’s right to choose, and every American is going to see which side every senator stands on,” Mr Schumer said.

But that effort is doomed to fail.

The Senate is split 50-50 between Democrats and Republicans. It’s possible a majority of senators would support codifying Roe, but due to the chamber’s filibuster rule, it would actually take at least 60 votes for the push to succeed.

That many votes will not be forthcoming.

US President Joe Biden. Picture: Nicholas Kamm/AFP

Democratic Senator Elizabeth Warren is among those already arguing for the filibuster rule to be scrapped, which would enable legislation to be passed with 50 votes. She expressed her frustration overnight.

“I am angry. Angry and upset and determined,” Ms Warren told reporters.

“The Republicans have been working towards this day for decades. They have been out there plotting, carefully cultivating these Supreme Court justices so they could have a majority on the bench who would accomplish something that a majority of Americans do not want.”

Former president Barack Obama and his wife Michelle released a statement saying the court’s looming ruling would “relegate the most intensely personal decision someone can make to the whims of politicians and ideologues”.

“Those without enough money or access to transportation or ability to take time off from school or work would face the same circumstances most women faced before Roe, desperately seeking out illegal abortions that inevitably pose grave risks to their health, their future ability to bear children, and sometimes their lives,” they said.

The Obamas urged Americans to “join with the activists who have been sounding the alarm on this issue for years” and protest.

Barack and Michelle Obama. Picture: Patrick Semansky/AFP

Meanwhile, a handful of moderate Republicans have joined the backlash, most notably moderate senators Susan Collins and Lisa Murkowski.

Both women suggested two of the conservative justices they voted to put on the court while Mr Trump was president – Justices Gorsuch and Kavanaugh – had misled them during the confirmation process.

“If this leaked draft opinion is the final decision and this reporting is accurate, it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings, and in our meetings in my office,” said Senator Collins.

“My confidence in the court has been rocked,” said Senator Murkowski.

“(This) was not the direction that I believed the court would take, based on statements that had been made about Roe being settled and being precedent.”

During his public confirmation hearings, Justice Kavanaugh told the Senate he believed Roe vs Wade was “settled as a precedent”.

Political showdown looms

Looming over this entire debate are the midterm elections, to be held in November. As things stand, the Republican Party seems almost certain to retake both the Senate and the House of Representatives, which are currently under the Democrats’ control.

Will the re-emergence of abortion rights as a prominent issue change the political calculus, energising Democratic voters? I guess we’ll find out.

Polls consistently show about two-thirds of Americans support the precedent set by Roe and think abortion should be legal, though not without restrictions. Support for legal abortion falls sharply if they’re asked specifically about it happening in the second and third trimesters.

Overwhelming majorities support abortion in cases of rape, incest, or in which the woman’s life is in danger. Some – not all – of the anti-abortion laws proposed by conservative states would keep those exceptions in place.

Originally published as One image says everything about Roe vs Wade being overturned