It is hard to overstate the magnitude of the leaked Supreme Court draft majority opinion to overturn Roe vs Wade. The landmark decision has enshrined the constitutional right to abortion for almost 50 years, supported by roughly two-thirds of Americans. The draft suggests the court will completely reverse the 1973 decision, which was always an imperfect fudge. As with pregnancy itself, it seems conservative justices deem there can be no half measures. The effect will be to deprive millions of women in abortion-hostile states of a right taken for granted in nearly all democracies, leaving a patchwork of states where abortion will remain legal.
Justice Samuel Alito’s argument to allow states to restrict abortion after half a century of nationwide protection is a radical departure from accepted court practice, in the ostensible pursuit of jurisprudential purism; a stark example of the perfect being the enemy of the good. Cloaked in the mantle of federalist freedom, it will deny women bodily freedom, as conservative states rush to enact laws to ban or severely curtail abortion, including after rape and incest. At least half of states are expected to do so if Roe is reversed.
But outlawing the procedure will not stop abortions, just safe ones. Bans condemn women — particularly the poor, rural or vulnerable who cannot travel to other states — to unimaginable choices: between dubious pills and knitting needles; between treatment for a botched procedure and fear that an abortion provider will face life imprisonment — the same sentence a rapist might face.
This in a country that despite its wealth and medical advances suffers from one of the highest maternal and infant mortality rates in the developed world — where race makes a disproportionate difference to outcomes. Curtailing abortion will merely cement these appalling statistics. Easy access to sex education, contraception, social care, midwifery and parental leave — all policies that could help reduce abortion in the first place — is already patchy.
If Roe is overturned. other protections that followed it will be vulnerable. Contraception and gay marriage are among the rights that could also be targeted by a conservative-dominated court that is morphing into a berobed legislature that cannot be unseated.
The question is what can be done about it. The answer must start with an understanding of how America’s apex court feels able to go against public opinion with such impunity. It has been the work of decades of Christian activism and planning. Meanwhile, lawmakers have been reluctant to codify abortion — hence the need for a court-made compromise in the first place.
There is no easy way to undo Roe’s reversal. The obvious remedy is a federal law enshrining the right to choose, but that would not clear the Senate’s 60-vote filibuster. Democrats will undoubtedly use the ruling to galvanise voters in November’s midterm elections. But there could be a high turnout for Republicans among Bible-belt enthusiasts.
The danger is America heads towards a critical impasse where the inbuilt veto power of the minority frustrates the majority. Every step available to the Democrats, such as expanding the court from nine to 15 justices, or imposing term limits on federal judges, is fraught.
The beauty of the system has been flexibility. But its success rested on informal conventions that no longer hold, including judges’ integrity and rewards for bipartisanship. The only lasting solution will be to out-organise the Christian right. Sentiment is little match for the power of organisation. On this, Democrats have been amateurs. America’s viability as a liberal democracy will depend on their ability to correct that glaring defect.