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Law students demonstrate at the U.S. Supreme Court after learning of the leaked anti-abortion decision.

For many months, ever since far-right jurists became the majority on the U.S. Supreme Court, it has been expected that the Court would soon either drastically curtail or entirely overturn the historic 1973 decision Roe v. Wade that recognized women’s abortion rights.  On May 2 the most dire predictions were confirmed.  A 90-page draft copy of Justice Samuel Alito’s majority ruling completely overturning Roe v. Wade was leaked to the press.  That the draft document made its way into the media prematurely is an unprecedented scandal in and of itself.  But the contents of the document are far more shocking than the circumstances in which it became known. In the most dramatic rejection of women’s rights in recent U.S. history, the Court majority will reverse Roe v. Wade and the past fifty years of Federal court decisions reaffirming reproductive rights. The U.S. will join Poland, Nicaragua and El Salvador as one of only four countries that have rolled back access to abortion during the last three decades.  Meanwhile, since 1994 fully fifty-nine countries have expanded the conditions under which abortion is legal. 

This blog has quite a number of readers from outside of the U.S., so it bears repeating that the Supreme Court decision will not criminalize abortion in the entire U.S.  The woman-friendly “blue” states, including most states in the northeast and coastal west of the country, will keep abortion legal and accessible.  But their resources are likely to be strained by having to accommodate women fleeing the draconian restrictions in the misogynist “red” states.  The hospital system of my state of Washington, for example, has been greatly taxed by an influx of seriously ill Covid-19 patients who contracted the virus in the neighboring state of Idaho, where the anti-mask and anti-vaccine movement is strong, and is generally supported by Republican political authorities. Now, with the Supreme Court opening the door to anti-abortion legislation in Republican-controlled states, clinics in Washington are anticipating an increase of Idaho women fleeing to our state to escape Idaho’s abortion ban. 

As many commentators have noted, the woman-friendly states generally protect access to a full range of reproductive health options.  In addition to abortion, often with state-assured financing for poor women, such states also provide access to low cost or free contraceptives, prenatal and postnatal care, and other services for infants and children.  Meanwhile, the misogynist states such as, for example, the anti-abortion stronghold of Mississippi (whose recent legislation restricting abortion Alito cites favorably), have some of the worst statistics in the country on women’s and children’s health and welfare. 

In the ruling Justice Alito blames his predecessors’ decision in Roe v. Wade for inflaming divisiveness in the U.S. over the abortion issue. The truth of the matter is that it is the extremist anti-abortion decision by Alito and his confederates that will lead to disputes and conflicts among the states. By throwing decisions on abortion legality exclusively back into the hands of the individual states, the U.S. Supreme Court is exacerbating the already immense divide between the roughly half of the country whose policies and laws provide for reproductive health rights, and those deeply misogynist regions with blatant disregard for the health and welfare of women.  

There is widespread agreement among historians that the worst decision ever made by the U.S. Supreme Court was the Dred Scott decision of 1857, which held that a Black person could not have the rights and protections of a citizen, even in a free state where slavery was not permitted, and, moreover, could be taken to a slave state and re-enslaved. According to the Wikipedia article on the Dred Scott decision, “Although Taney and several other justices hoped the decision would permanently settle the slavery controversy, which was increasingly dividing the American public, the decision’s effect was the complete opposite. Taney’s majority opinion suited the slaveholding states, but was intensely decried in all the other states. The decision inflamed the national debate over slavery and deepened the divide that led ultimately to the Civil War.” Apparently Alito and his fellow rightists on the Court would rather disregard the lessons of history.