Leaked Supreme Court draft is full of mystifying arguments against abortion rights

The leaked draft of a Supreme Court ruling this week confirmed what many had feared for months: Justices, dominated by conservatives, are preparing to overturn Roe v. Wade and leave tens of millions of women losing access to abortion overnight.

The 98-page draft, which Chief Justice John Roberts confirmed was legitimate but not final, was written by Justice Samuel Alito, one of the more conservative jurists on the panel. Here are some of the most confusing passages from the leaked text.

He is obsessed with keeping women in the past.

Alito repeatedly argued throughout the project that Roe v. Wade was wrong because, until the 1973 decision, banning abortion was simply the American way.

“Until the end of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. Zero. Nothing. No state constitutional provision had recognized such a right. Until a few years before Roe was rendered, no federal or state court had recognized such a right.

Alito is right: Abortion has been widely banned over centuries of US history, when women were legally considered second-class citizens, barred from medical institutions and public office, and banned from property. They didn’t get the right to vote until 1920, and black women faced barriers to voting until Congress passed the Suffrage Act in 1965, just eight years before the court decides Roe.

Activists gather outside the US Supreme Court the day after the project leaked.

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It was not until after the Roe decision that all women in the United States were granted the right to apply for a credit card without a man’s permission, to demand protection from dismissal for pregnancy and prosecute workplace sexual harassers. Until the 1990s, several states did not recognize marital rape as a crime.

Legal advances on women’s bodily autonomy have been made after women have forced their way into decision-making spaces from which men have long excluded them. But here’s what Alito had to say:

“The inescapable conclusion is that the right to abortion is not deeply rooted in the nation’s history and traditions,” he wrote. “On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal penalties persisted from the earliest days of the common law until 1973.”

He repeatedly cites a misogynist from the 1600s who had women executed for “witchcraft”.

Most Americans have probably never heard of Sir Matthew Hale, an English jurist born in 1609. But Alito cites him half a dozen times throughout his project as proof that abortion bans are an integral part of our country’s heritage.

“Hale wrote that if a doctor gave a woman ‘with a child’ a ‘potion’ to induce an abortion, and the woman died, it was ‘murder’ because the potion had been administered ‘unlawfully to destroy her child in her,” Alito wrote in defense of the 2022 abortion ban.

It’s no surprise that Hale is opposed to abortion, given what reporters have recently unearthed about him. Her legacy includes the execution of two women for “witchcraft” and writing to defend marital rape.

Although Alito considers him the authority on the criminality of abortion of a fetus, Hale also advocated for the death penalty for children as young as 14.

If all the medical standards of Hale’s life were applied today, we wouldn’t know of the existence of germs, medicinal ingredients would include the crushed skulls of executed criminals and live worms, and doctors would cover sick patients with leeches. to suck them. some blood. For most of Hale’s life, doctors didn’t even have a scientific understanding of where babies came from.

Judge Samuel Alito got his job from a president who did not win the popular vote.
Judge Samuel Alito got his job from a president who did not win the popular vote.

MANDEL NGAN via Getty Images

It ignores the main obstacles to voting on abortion.

Alito wrote throughout his project that abortion should be a matter of state law. If people want it, he wrote, they just have to elect people who support it.

“Our decision refers the issue of abortion to those legislative bodies, and it allows women on both sides of the abortion issue to seek to influence the legislative process by influencing public opinion, lobbying legislators, voting and running for office,” he wrote in one passage. “Women are not without electoral or political power.

Yet the franchise is under siege like never before, with many conservatives using the myth of widespread voter fraud to justify policies that make it harder for working classes and ethnic minorities to vote. State legislatures that have recently passed such laws—which include crackdowns on voter ID, early voting and voter registration windows—are the same ones that plan to ban abortion as soon as possible.

Despite these issues, the Supreme Court made it clear last year that it would not act to stop voter suppression laws.

Moreover, the will of the voters does not always determine the composition of the highest political and judicial bodies in our country. Alito himself was appointed to the high court by a man who became president without winning the popular vote. So did three of the four other judges who apparently wanted to punch Roe: Brett Kavanaugh, Amy Coney Barrett and Neil Gorsuch.

A protester with a hanger around her neck demonstrates in Boston this week.
A protester with a hanger around her neck demonstrates in Boston this week.

He repeats the myths of the “fetal heartbeat”.

The recent wave of abortion bans linked to the presence of “fetal heartbeats” are not based on real science, doctors have been saying for years. But Alito repeats the myths written in these laws anyway, calling them “factual conclusions.”

The Mississippi Legislature “has found that at five or six weeks of gestational age, ‘the heart of an unborn human being begins to beat,'” Alito wrote in one passage.

But doctors say calling it a heartbeat is wrong, and it’s just an attempt to manipulate people’s emotions. At six weeks gestation, the heart activity of an embryo — not yet called a fetus — “looks nothing like what would eventually become a functioning adult human heart,” said Dr. Colleen McNicholas, an obstetrician. -gynecologist who performs abortions, told HuffPost in 2019.

“At this point, it’s really these two tubes with a few layers of cardiac or cardiac cells that can vibrate or cause some sort of movement that we colloquially use to talk about a ‘fetal heartbeat’.”

He treats pregnancy and motherhood like nothing much.

Without offering an answer, Alito sums up a hollow argument of the anti-abortion movement: that being pregnant and being a mother are not as difficult as they used to be.

“Attitudes towards the pregnancy of unmarried women have changed dramatically; that federal and state laws prohibit discrimination based on pregnancy, that pregnancy and childbirth leave are now guaranteed by law in many cases, that the costs of medical care associated with pregnancy are covered by insurance or government assistance,” Alito wrote.

Thousands of protesters gather in Foley Square in New York City on May 3, 2022, after a proposed Supreme Court majority opinion to overturn the landmark abortion ruling in Roe v.  Wade.
Thousands of protesters gather in Foley Square in New York City on May 3, 2022, after a proposed Supreme Court majority opinion to overturn the landmark abortion ruling in Roe v. Wade.

Tayfun Coskun/Anadolu Agency via Getty Images

It would be appropriate to note that the United States is one of six countries in the world without national paid family leave. The rest of the world averages 29 paid weeks. It’s also generous to say that pregnancy-related leave is promised “in many cases” because only 10 states and Washington, DC, have passed their own laws mandating paid family leave.

Contrary to Alito’s characterization, pregnancy and childbirth are not free. The average cost to have a baby in the United States is almost $11,000, and that without any complications. Accounting for care needed before and after childbirth can add up to $30,000. These costs also vary wildly from state to state.

He claims that Roe made Americans more divided.

Alito also emphasized the extent to which Roe and Planned Parenthood v. Casey — a 1992 Supreme Court decision that upheld the first — divided the country.

“Roe was horribly wrong all along,” Alito wrote. “His reasoning was exceptionally weak, and the decision had damaging consequences. And far from achieving a national settlement of the abortion issue, Roe and Casey have inflamed the debate and deepened the division.

But numerous polls show that public opinion on abortion has remained largely stable over the past few decades. While many Americans support some restrictions on who can perform abortions and when, 6 in 10 Americans today oppose Roe’s cancellation. Young adults are also more supportive of access to abortion, according to a poll, indicating that support for protecting the procedure may increase over time.


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