by Perry Diaz
It all began when a Supreme Court draft opinion leaked out that Roe v. Wade will be stricken down.
Justice Samuel Alito’s “sweeping and blunt draft majority opinion” striking down Roe v. Wade and the constitutional right to abortion remains the Supreme Court’s “only circulated draft in the pending Mississippi abortion case.”
And there are no dissenting draft opinions circulating among the justices, which means that national abortion rights appears imminent.
With six conservatives on the high court right now, it’s conceivable that Chief Justice John Roberts – usually a swing voter – would cast a dissenting vote that would end in a slim majority 5-4 vote.
However, he could introduce an amendment that would water down the ruling and lessen the impact of the decision. He might even be able to convince another justice to go along with his amendment; thus, ending up with something that is palatable to the liberal justices. That’s just the way politics at the Supreme Court work. But still, it’s politics at play.
Roe v. Wade was a landmark decision passed in 1973 in which the Court ruled that the Constitution of the United States protects a pregnant woman’s liberty to choose to have an abortion without excessive government restriction. The decision struck down many US federal and state abortion laws.
Alito’s draft opinion
In Alito’s 98-page argument, he wrote that Roe v. Wade should be overruled because the Constitution “makes no reference to abortion, and no such right is implicitly protected by any constitutional amendment, including the one on which defenders of Roe … now chiefly rely – the Due Process Clause of the Fourteenth Amendment, which states: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Alito then went on to differentiate between abortion and other rights guaranteed by the 14th Amendment, writing that the procedure is “fundamentally different… because it destroys… what the law now before us describes as an ‘un-born human being.’”
Clearly, the mention of abortion would immediately spark controversy, regardless of which side you’re with. Majority of American women are very protective of their reproductive rights while a small minority driven by their religious beliefs are against abortion.
Abortion rights bill fails
In an attempt to pre-empt Alito’s anticipated opinion, Senate Democratic leaders introduced a bill – Women’s Health Protection Act – that would enshrine abortion rights in federal law.
The bill failed in a 49-51 vote with all 50 Republican senators, along with Democratic Sen. Joe Manchin opposing. But even if all the Democrats had voted for the bill, it would still fail to pass because it didn’t have enough support to overcome the 60-vote filibuster threshold.
If passed, the bill would have protected abortion access across the country and ensured the procedure remains legal in every state without additional restrictions.
Manchin, an abortion opponent who represents a conservative state, said he voted against the bill because it went further than just codifying Roe v. Wade into federal law.
He said the proposal “expands abortion.” He said he had been “pro-life all my life” but did believe in some exceptions to abortion bans.
Republican Sens. Susan Collins of Maine and Lisa Murkowski of Alaska, who said they support abortion rights and have offered a more narrowly tailored piece of legislation to codify Roe, also voted against the bill.
The vote demonstrated the Senate’s inability to pass important legislation like the Build Back Better bill, which failed on a 49-51 vote that didn’t require a 60-vote filibuster threshold. Again, it was Manchin who dealt a blow.
If Roe v. Wade is overturned, 13 states with so-called trigger laws, poised to go into effect if the Supreme Court strikes down Roe v. Wade, the time of restricted access to birth control is unfolding in states that narrowly define when life begins. Some states are even considering legislation that would limit the kinds of birth control residents can acquire.
Some conservative lawmakers wasted no time signaling they were looking into restricting or banning certain types of emergency contraception, such as Plan B and certain types of intrauterine devices – IUDs – could be restricted, or other morning-after pills that can be used within 72 hours of intercourse to prevent pregnancy.
In Louisiana, legislation was introduced that would classify abortion as a homicide and define “personhood” as beginning from the moment of fertilization. Anything that would prevent a fertilized egg from turning into a pregnancy and being born into a baby could be considered a homicide. And abortion providers would be prosecuted as criminals.
With all the maneuverings in the Senate, the Women’s Health Protection bill doesn’t have a chance of seeing the light of day. It has unnecessarily become too controversial that Republican women senators junked the bill. So, what’s next?
At this point in time, it doesn’t seem that Congress would ever pass anything that resembles the Women’s Health Protection bill, which means that the Supreme Court’s draft opinion to strike down Roe v. Wade will soon be deliberated by the justices.
Unless Chief Justice John Roberts can come up with a anti-abortion ruling that can get the support of one more justice, which would give them a slim 5-4 majority decision.
Otherwise, if the Supreme Court fails to fashion a palatable anti-abortion decision – like something that would legitimize abortion of pregnancies caused by rape or incest.
At the end of the day, unless the Senate gets its act together, Roe v. Wade will soon cease to be the law of the land. Yes, Roe v. Wade is under siege in America!
PERRY DIAZ is a writer, columnist and journalist who has been published in more than a dozen Filipino newspapers in five countries.
by Perry Diaz