‘No one is safe’: Fury among pro-choice advocates as US Supreme Court prepares to overhaul abortion law

The United States is in political uproar over an “unprecedented” leak from the nation’s Supreme Court with huge ramifications.

The United States is in political uproar over a leaked document from its Supreme Court, which indicates abortion rights are about to be rolled back across much of the country.

Overnight the court’s Chief Justice, John Roberts, confirmed a draft opinion published by the news website Politico yesterday was ”authentic”.

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.

The draft, written by conservative Justice Samuel Alito, 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. Some states already have laws on the books – currently unenforceable – that will trigger bans from 15 weeks, or even as early as six weeks, when many women don’t know they’re pregnant.

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

“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.”

Stream more US news live & on demand with Flash. 25+ news channels in 1 place. New to Flash? Try 1 month free. Offer ends 31 October, 2022 >

The US Supreme Court is reportedly set to overturn a 50-year-old decision in the US to recognise abortion as a constitutionally protected right. Picture: Getty

Fury in pro-choice America

The news has sparked two separate backlashes: one, from the left, against the idea of overturning Roe, and another from the right against the leaking of the draft ruling.

We’ll start with the former.

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

‘No one is safe’

Legal experts in favour of allowing abortion have expressed concern that overturning Roe could lead to many women being prosecuted.

“Overturning Roe will be a mass criminalisation event,” Jessica Arons, senior policy counsel for reproductive rights at the American Civil Liberties Union, told ABC News.

“When abortion is banned, it means every pregnancy loss is suspect to investigation and criminal charges and people being put in jail.”

She added that “no one is safe”.

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 Donald Trump was president – Neil Gorsuch and Brett 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 Ms Collins.

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

The Republican senators’ responses to the news earned no sympathy from prominent left-wing Democratic Congresswoman Alexandra Ocasio-Cortez.

“Murkowski voted for Amy Coney Barrett when Trump himself proclaimed that he was appointing justices specifically to overturn Roe. She and Collins betrayed the nation’s reproductive rights when they were singularly capable of stopping the slide,” she said.

“They don’t get to play the victim now.”

The US Supreme Court. Justice Gorsuch is at the back left, and Justice Kavanaugh is at the back right. Picture: Andrew Harrer/Bloomberg via Getty Images

‘Gone too damn far’: Hollywood seethes

Of course, celebrities were also quick to weigh in.

“Those motherf***ers really did it,” vented Star Trek actor George Takei.

“We have to unite and strike back. Take to the streets. Overwhelm them at the ballot box. They have gone too damn far.”

Rosanna Arquette, ever-measured, told the court to “get your dirty NAZI boots off our wombs”. Cher, in a similar mood, told Americans “who aren’t braindead” they would “deserve living in Russia west” if they failed to vote in the midterms.

Susan Sarandon called on Democrats to abolish the filibuster and legislate a federal right to abortion, and told “vote-shaming keyboard activists” to “get outside and use your energy to actually hold them accountable”.

“Forced birth and illegal abortions across state lines is backwards and cruel. The Supreme Court has become the division,” said Mark Ruffalo.

“Thanks to Alito and his ilk of right-wing radicals, who are toxic to the court’s impartiality. Based on his arguments, the Supreme Court is strictly political now.”

“So let me get this right: I don’t get to tell you to wear a mask during the pandemic, but you can make me carry a pregnancy I don’t want or that isn’t safe to term? Oh. Cool cool,” said author Jodi Picoult.

And actor Josh Gad approvingly shared this comment from songwriter Kristen Anderson-Lopez: “So they abolish abortion but don’t care if our children are killed in school with guns. They abolish abortion but cut healthcare, childcare and education for the most vulnerable. This isn’t pro-life. This is anti-woman.”

George Takei was among the celebrities speaking out.

‘Unprecedented’: Calls to ‘arrest’ the leaker

The political right, of course, was happy about the substance of the court’s draft ruling. But conservatives were unhappy about it being leaked.

Unlike in politics, leaks to the media from the Supreme Court are exceedingly rare. One like this could even be called “unprecedented”, according to law professor Edward Fallone.

“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.”

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.