WASHINGTON, DC—The right to an abortion in the US is endangered—everyone’s known it for awhile.
After former president Donald Trump completed a decades-long, co-ordinated conservative project to pack the courts with anti-abortion justices. After states like Mississippi and Texas passed bans on abortion that blatantly violated Roe v. Wade. After hearing the lines of questioning from the Republican-appointed Supreme Court in hearing Dobbs v. Jackson Women’s Health — one of those cases that could overturn Roe.
But for those who see the right as an essential element of women’s freedom, the looming sense of dread became a five-alarm emergency Monday evening when an apparent draft opinion by the court striking down Roe v. Wade was leaked to and published by Politico. If that leaked opinion, which is reported to represent a majority decision by the justices, is anything like the decision the court issues sometime before the end of its term next month, the end of protected abortion rights in the US is only weeks away.
About a dozen states have already passed “trigger bans” that would take effect immediately if such a decision is handed down, and more states have been preparing to outlaw abortion in anticipation of the coming ruling. Some are also outlawing traveling to other states to receive an abortion.
And so, supporters of abortion rights had gathered outside the Supreme Court Monday night.
“I’m scared as a woman. I’m scared as someone who believes in the Constitution. And so I’m here tonight with my friends, protesting this draft opinion,” said Renee, a Georgetown University undergraduate student. She was sitting with a handful of others with tea light candles lit on the ground in front of them, holding signs reading things like “Abortion is a civil right” and “Keep your religious hate out of my uterus.”
They were joined by more than a thousand others, the crowd growing through the night and into early Tuesday morning, filling the sidewalk in front of the court building chanting “My body, my choice,” “Pro-life is a lie, you don ‘t care if women die,” and “Abortion is health care.” In the crowd you could hear expressions of shock and disbelief, fear and loathing. For half a century, abortion has been legal in the US, since the Supreme Court decided it was protected by the Constitution. Now the Supreme Court may well take it away.
“This is the most ominous and alarming sign yet that our nation’s highest court is poised to overturn Roe v. Wade, ending the constitutional right to abortion as we know it and ripping away our freedom to decide if, when, and how to raise our families,” Mini Timmaraju, president of the abortion rights group NARAL Pro-Choice America said in a statement after the leak. “While this is a draft opinion and abortion is still legal, we need to brace for a future where more and more people are punished and criminalized for seeking and providing abortion care.”
The protesters outside the court building didn’t want to brace themselves. They wanted to keep abortion legal. Though they knew they were unlikely to change the court’s decision with a protest, they felt the need to be heard.
“This is, in America, this is what you do. You stand up, you exercise your free speech rights when you disagree. I’ve got to hope this means something,” Renee said. “While the court is not beholden to public opinion, certainly the three branches of government work cohesively to govern the people. And so this is the voice of the people.”
Her fellow protesters had a chant that periodically made much the same point: “Democrats, do something!”
For all the decades that Roe v. Wade has been the law of the land, Congress has never codified the federal right to abortion in legislation — something they have been free to do at any point. Something they remain free to do now.
Sen. Bernie Sanders tweeted Monday night that Democrats must do so immediately now that the imminent threat to abortion rights is clear.
“Congress must pass legislation that codifies Roe v. Wade as the law of the land in this country NOW,” he tweeted. “And if there aren’t 60 votes in the Senate to do it, and there are not, we must end the filibuster to pass it with 50 votes.”
Time is short for them to do that, if they want to and if they can. Midterm elections in November could swing the balance of power to the Republicans, who might instead attempt to pass a federal abortion ban.
Not everyone outside the court building was angry at the leaked opinion — a group of perhaps a dozen loud anti-abortion demonstrators were celebrating and chanting “Hey hey, ho ho, Roe v. Wade is going to go.”
Randall Terry, the founder of the direct-action “Operation Rescue” anti-abortion group was there with a ukulele, leading songs celebrating the end of legal abortion.
“We will DANCE on the grave of Roe vs. Wade. Thousands of us have been fighting for our entire lives to save babies from murder. This is a huge step toward making child-killing illegal in all 50 states,” Terry said in a statement he sent to the press just as the demonstration was getting underway.
The leak of a draft opinion in advance is very unusual in recent Supreme Court history — though University of Georgia law professor Jonathan Peters pointed out on Twitter that though they are “rare and remarkable,” they aren’t unprecedented. In fact, the original Roe v. Wade’s decision in 1973 was leaked to Time magazine ahead of being announced by the court.
Still, the leak will be a big scandal for the court. “It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff,” the influential court analysis outlet SCOTUSblog tweeted Monday.
Yet for those gathered outside the court under the night sky, the contents of the decision represented a more significant earthquake. “The Handmaid’s Tale is reality here,” one woman said to me. “If they’ll take away a woman’s rights over her own body, what else will they do?”
Expert court watchers advised that even if the leak is legitimately a draft opinion, those often undergo several revisions before being released — sometimes substantial ones. And at least sometimes it has been reported that votes change as opinions are circulated. So it is possible, even if it seems unlikely, that the final decision could be very different.
Either way, Renee thinks it’s time for politicians to act on their own accord.
“We need to do what we should have done a long time ago, we need to codify Roe v. Wade. We need to protect abortion rights in this country at every level of government. It’s health care, it’s a fundamental human right. Abortion is health care. I think Congress needs to do that,” Renee told me. “Barring that, I think states, in the exercise of their police power and regulating health and safety of citizens, need to step the f— up.”
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