Remember back when the draft of the Dobbs decision was leaked? And some people got more worked up about the leak than about the horrendous decision? Well, we still don’t know who the leaker was, but we know now that the leak killed Chief Justice Roberts’s efforts to save Roe in some form.
John Roberts privately lobbied fellow conservatives to save the constitutional right to abortion down to the bitter end, but May’s unprecedented leak of a draft opinion reversing Roe v. Wade made the effort all but impossible, multiple sources familiar with negotiations told CNN.
It appears unlikely that Roberts’ best prospect — Justice Brett Kavanaugh — was ever close to switching his earlier vote, despite Roberts’ attempts that continued through the final weeks of the session.
Once the draft became public, the pressure on conservatives to deliver the end to Roe was just too great to overcome Roberts’s pleas for moderation. Which does make one suspect that the leaker was someone who wanted Roe to be overturned.
At the New York Times, Linda Greenhouse writes that Religious Doctrine, Not the Constitution, Drove the Dobbs Decision.
Does anyone really think it was motivated by disapproval of the court’s reliance in Roe v. Wade on substantive due process, an interpretation of the 14th Amendment that accords meaning to the word “liberty” in the due process clause? Is there anyone who believes that if only the Constitution had included the word “abortion,” the anti-abortion movement would have failed to gain political traction? (Although the Dobbs majority treated the absence of the A-word in the Constitution as nearly fatal to Roe all by itself, it is worth observing that the Constitution’s 7,600 words, including its 27 amendments, contain neither the word “fetus” nor “unborn.”)
No one really buys the argument that what was “egregiously wrong” with Roe v. Wade, to quote the Dobbs majority, was the court’s failure to check the right analytic boxes. It was not constitutional analysis but religious doctrine that drove the opposition to Roe. And it was the court’s unacknowledged embrace of religious doctrine that has turned American women into desperate refugees fleeing their home states in pursuit of reproductive health care that less than a month ago was theirs by right.
Alito’s reasoning is especially, um, stupid considering that abortion was legal in colonial America. It was mentioned in the medical records of the time. It was not sociall acceptable, and so abortions were performed in secret, But laws banning abortion didn’t appear in the U.S. until the 1820s and weren’t widespread until the 1860s. No, the constitution, written by a bunch of men, didn’t mention it. Abortion was a woman’s issue, and women are missing from the Constitution. Greenhouse continues,
Indeed, the fetus is the indisputable star of the Dobbs opinion. That is not necessarily obvious at first reading: The opinion’s 79 pages are larded with lengthy and, according to knowledgeable historians, highly partial and substantially irrelevant accounts of the history of abortion’s criminalization. In all those pages, there is surprisingly little actual law. And women, as I have observed before, are all but missing. It is in paragraphs scattered throughout the opinion that the fetus shines.
Basically, Greenhouse argues, Alito took his religious belief and enshrined it in enough cherry-picked citations from history to make it look respectable. This is about his religious views, not the law.
A former leader of a religious right activist group recently admitted on a podcast that the language that Supreme Court Justice Samuel Alito used in his damning majority opinion overturning Roe v. Wade mirrored rhetoric the Christian group has been pushing on Supreme Court justices for decades.
Rev. Rob Schenck recently appeared on an episode of the State of Belief podcast to discuss his efforts as a former member of the group Faith and Action to, essentially, sway justices’ views on social issues through prayer sessions. The interview is from earlier this month, but Politico surfaced it here. It’s worth a listen if you want to get a better understanding of how these unofficial evangelical lobbying-via-prayer efforts work, but it reinforces a theme we covered earlier this summer when an official at the evangelical organization, Liberty Counsel, was caught on a hot mic bragging about secretly praying with Supreme Court justices.
So, yes, this is just about Christian nationalism. A whole lot of what this SCOTUS is about is Christian nationalism.
And here’s the result: Because of Texas abortion law, her wanted pregnancy became a medical nightmare. This is a case that sounds very similar to that of Savita Halappanavar, whose unnecessary death from sepsis eventually led to legalizing abortion in Ireland. In the Texas case, the pregnant woman, Elizabether Weller, very much wanted the baby, but her water broke at only 18 weeks gestation, and this left her vulnerable to infection. Because of Texas law, she had to wait and suffer until she was in great danger before doctors could step in. Unlike Savita Halappanavar, Elizabeth Weller lived. But it was close.
And life of the mother exceptions are beng struck from many state abortion laws.
Anti-abortion-rights groups, like Wisconsin Right to Life, have described the “life of the mother” exception as unnecessary and wrong. The Idaho GOP just approved a platform with no lifesaving exception. Republican candidates like Matthew DePerno, the Republican running to be Michigan’s attorney general, oppose all exceptions to abortion bans, and that includes to save a mother’s life. Conservative states are rushing to eliminate or narrow existing exceptions to their laws. Powerful groups like Students for Life, Feminists for Life, and the American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG) argue that “abortion is never medically necessary” and that doctors should always be punished for intentionally taking a fetal life.
This is zealotry on steroids. Any human detail that gets in the way of their belief must be denied. I’m afraid a lot of women are going to die before abortion rights can be restored.