Why Overruling Roe v. Wade is a Democratic Party Failure
Elections and Politics Policy Brief #35 | By: Roarke Cullenbine | May 16, 2022
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With the leak of the Justice Alito’s draft opinion for Dobbs v. Jackson Women’s Health, the court’s clear disregard for respecting prior precedent sets aside any concerns for the institution’s legitimacy. The real issue, of course, is the loss of the right to have bodily autonomy.
Conservatives did not work alone to achieve this infamous chapter in American history as this is undoubtedly also a Democratic Party failure. The party has known for years that a decision such as Dobbs was only a matter of time and continuously promised to support the right to abortion as a means to receive votes every election season without any actions to support their promises. Most notably, the party was put on notice in 1992 by the drafting of Planned Parenthood v. Casey. In that case, the majority of the court planned to overturn Roe if it was not for Justice Kennedy who joined in an opinion to not overrule but modify Roe to establish the right to access an abortion up to viability and prohibit undue burdens on women who seek them.
Since then, the most notable failure of the party was former President Barack Obama’s 2007 promise to codify Roe as a statutory protected right. Within his first hundred days, he admitted that it was not a pressing issue and did not follow through on his promise to sign the Freedom of Choice Act. While celebrated for many good reasons, he was still championed by the Party and was reelected in 2012, setting the foundation for Roe’s demise in 2022. Further, Nancy Pelosi’s ongoing support for Representative Henry Cuellar for Texas after his seventeen years of anti-choice leadership provides him with a stamp of approval from the Democratic Party. This is why voting is no longer enough. The Democratic Party needs a clear platform with a commitment to keeping each other accountable for their promises.
The Party fails to take stronger stands on issues such as abortion for fear of a loss of party congressional control. When appeasing Senators Joe Manchin and Kyrsten Sinema, in an attempt to keep a Congressional majority, it weakens the party’s uniformity for unrealistic concerns that they would switch parties given that the only unique thing they triumph is acting as Republicans with a Democratic Party label.
On May 2, Justice Alito’s drafted majority opinion for Dobbs v. Jackson Women’s Health was leaked, and the contents were of no surprise. Being the modern Pentagon Papers for the Supreme Court, many conservatives are proclaiming how unprecedented and unlawful such a leak was, risking the loss of legitimacy within the institution, while simultaneously championing the news that women across the US will lose their right to bodily autonomy.
This “leak issue” should be of no concern. The Court has known that an overruling of Roe would challenge its legitimacy and it has avoided such a ruling until today. One principle that bars Court review is stare decisis, conceptually meaning “let the decision stand”, and is hailed as an absolute bar from case review by many conservatives, unless of course the issue is abortion. Real concerns for Court legitimacy ceased when its own majority threw them away; instead, there are real, material consequences to the proposed ruling and the Dobbs decision will be infamously remembered as a direct consequence of the Democratic Party’s failure to take stronger action on abortion rights.
Predictions of Court outcomes has become, and has long been, a numbers game. If you can count five conservative heads that make up the Court, a conservative ruling is almost certain.
Roe was considered a “super-precedent”, clearly demonstrated by the ongoing public outrage and historical deference as federal law since 1973, yet its impending demise has been long known to the Democratic Party. When discussing Roe, many also implicitly include Planned Parenthood v. Casey from 1992.
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In Casey, Pennsylvania challenged the inherent right to self bodily autonomy by requiring approval from others when a woman decided to have an abortion, such as an approval from her husband.
In 1992, the Court was going to overrule Roe, but Justice Kennedy changed his mind after a draft opinion was created by Justice Rehnquist, resulting in a joint opinion that upheld but modified Roe, permitting abortion up to viability but prohibiting undue burdens on those who seek them. Since then, the Democratic Party has long stated that it would codify Roe as US law. However, when viewed in hindsight, this has been mere puffery for political support. This is why simply voting is not going to be enough.
So, what result? If Justice Alito’s opinion is published, it is likely that about half of the states will essentially prohibit abortion in its entirety, with many others having great restrictions placed without the protections of Roe and Casey. Further, Democratic states such as Michigan and Wisconsin may be forced to revert to old laws banning abortion that were never changed after Roe, regardless of whether the state governors agree.
Additionally, many states are likely to create new laws that either punish abortion or support women who seek them. Justice Alito’s opinion attempts to limit itself to abortion but if contraceptives were placed where abortion is cited, the opinion would read just the same. This may not end at abortion as Justice Alito suggests. This is why it is vital that as many people as possible go beyond the call to vote and get politically active. These are American rights that are at stake, with real lives at risk with over half a million US women receiving abortions yearly.
Click or tap on resource URL to visit links where available
Center for Reproductive Rights
NARAL Pro-Choice America
Texas Equal Access Fund
The AFIYA Center