Two weeks ago in these pages, I cautioned readers not to look away from pending (and in some cases already implemented) legislation in U.S. states that undermines the rights of LGBTQ Americans.
Now, social progress in America has been dealt another, potentially far more catastrophic, blow. A leaked draft opinion from the country’s conservative-dominated Supreme Court indicates its intention to reverse half a century of legal precedent and the codified right to an abortion.
Lots will get lost amidst the noise and the furor brought about by this unprecedented leak. But again, do not look away; focus on just what’s at stake. The language and reasoning in the leaked opinion reveals a sinister and deliberately vague repudiation of progressive causes, one that we have no reason to believe won’t have implications beyond abortion rights.
In fact, it confirms something that many of us feared to be true: social progress is never truly safe and arguments we thought may be legally benched will rear their ugly heads the second their proponents are given a chance.
Hopes, including my own, that Donald Trump’s presidency would be remembered merely as an innocuous and largely inconsequential historical blip have been proven wrong, beyond doubt. Rather, the court that Trump loaded with socially conservative justices now threatens to reignite the most controversial and divisive issue in America in an ambiguously threatening way.
With the Trump-appointed justices in tow, it is the ultra-conservative Samuel Alito, appointed by George W. Bush, whose leaked draft provides a stark insight into this threat. In the draft, Alito declares the landmark Roe v. Wade decision “was egregiously wrong from the start … its reasoning was exceptionally weak, and the decision has had damaging consequences.” He also argues that the right to abortion has no constitutional criterion, nor is it “deeply rooted” in America’s “history and traditions.”
Whatever you think of abortion rights (for the record, I am strongly in favour of them), dismissing established legal precedent on the grounds that it has no root in distant tradition is alarming rhetoric. This should concern all those in favour of social progress and open debate. Worryingly, Alito is trying not only to renounce the logic and legal protections around abortion rights, but the very idea that “history and traditions” can and should be challenged as new realities develop and as historically marginalized groups find their voices.
Most concerning for me personally is, taken verbatim, these very arguments could be applied to another landmark Supreme Court decision: the one establishing the right to equal marriage. Jim Obergefell, the lead plaintiff in that case, has voiced similar fears, being “overwhelmed, scared and concerned about our nation and the rights that we enjoy.”
While Justice Alito was quick to dismiss suggestions that equal marriage might be next on his docket, the foreboding and archaic tone of his draft opinion suggests otherwise. Like abortion rights, it has been excluded from tradition and is not explicitly protected by the U.S. Constitution, a fact which leaves it vulnerable to attack and misrepresentation.
When Roe v. Wade was passed in 1973, it was decided 7-2, with five Republican appointees in favour. Almost 50 years later it stands a real chance of being overturned by Republican appointees. As Trump loaded the court, alarm bells were sounded. But as is often the case with the “slippery slope” argument, its consequences seemed so far away that it was dismissed, just as Chicken Little was. But it now appears the slope was indeed slick, and this draft opinion demonstrates those concerns were well-placed.
Rights, no matter how established, are never immune to challenges or threats. Even though many rights have been won over decades or even centuries, their erosion starts in a creeping and incremental way — and can well end at whiplash speed. The cadence of this draft opinion provides all the confirmation you need.