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'Stunning on so many levels': CNN legal analyst breaks down draft opinion obtained by Politico
03:15 - Source: CNN

Editor’s Note: Nicole Hemmer is an associate research scholar at Columbia University with the Obama Presidency Oral History Project and the author of “Messengers of the Right: Conservative Media and the Transformation of American Politics” and the forthcoming “Partisans: The Conservative Revolutionaries Who Remade American Politics in the 1990s.” She cohosts the history podcasts “Past Present” and “This Day in Esoteric Political History.” The views expressed in this commentary are those of the author. View more opinion on CNN.

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The US has the highest maternal mortality rate in the industrial world.

If the draft of Justice Samuel Alito’s opinion in Dobbs v. Jackson Women’s Health Organization becomes the framework for the Supreme Court decision on abortion, that rate will likely climb even higher.

Nicole Hemmer

US health care and political systems routinely fail those who are pregnant, failures that have grown even deadlier in recent years. Even before Covid-19 spiked maternal mortality in the US, rates were still on the rise, especially among Black women. If – and it is probably now when – the court overturns Roe, the combination of less-regulated abortion services and more girls and women being forced to carry pregnancies to term will ensure an even higher number of pregnancy-related deaths in the US.

The draft opinion reminds us these high death rates are the near-certain result of a political choice – but not a democratic one. For all the talk of Roe v. Wade as a polarizing decision, Americans are not polarized on the question of whether it should remain in place. Though it’s too soon for polling on this draft opinion, a January CNN poll shows 69% of Americans oppose a court ruling that would overturn Roe, consistent with other polling over the years. The Alito opinion is both radical and unpopular.

And even if it weren’t, it represents a grotesque violation of women’s right to bodily autonomy and personhood. The US legal system has a twisted history of weaponizing bodily autonomy to deny full citizenship to certain Americans, but its centrality to citizenship rights is present even today in other forms. The temporary loss of autonomy through imprisonment can lead to other limits on citizenship, such as the right to vote. And for women in the US, liberation has always been tied in some way to bodily autonomy: until the 1970s, women’s legal identity was mostly erased by marriage, leaving some of their most intimate decisions – from their fertility to their decisions to have sex – in the hands of others. Stripping women of reproductive control is not just a loss of medical autonomy but a loss of full membership in the body politic.

The erosion of that autonomy happened in both slow and dramatic fashion. There is an important story about incrementalist politics and the anti-abortion movement, one that historians have carefully detailed in recent years. But the 50-year war against Roe is not just a story of political strategy and institution-building but also one of violence and anti-democratic power grabs. At least 11 people have been killed in attacks on abortion clinics and providers since 1993. There have been dozens of bombings targeting abortion providers, nearly 200 cases of arson and hundreds of episodes of assault, vandalism and bioterror threats.

But it was an act of procedural radicalism that determined Roe’s fate: the unprecedented move by Senate Republicans to keep former President Barack Obama from filling an open seat on the Supreme Court. Those same procedural radicals now wring their hands about norms, shamelessly huffing about institutional integrity as they argue against acts like ending the filibuster or expanding the Supreme Court. They are free to play-act a commitment to principles other than power; everyone else is free to point out what a farce it is.

There is perhaps no greater farce than Alito’s appeal to democracy in his draft opinion. He maintains voters, not courts, should decide whether abortion is legal. Overturning Roe, he argues, in fact empowers women, because it “allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office.”

Except the very court he sits on has restricted those rights: deciding a presidential election by stopping the 2000 recount (Bush v. Gore), diluting voters’ lobbying power by allowing unlimited and anonymous campaign spending (Citizens United v. FEC) and gutting the Voting Rights Act (Shelby County v. Holder). As a result of all this, the current court will allow a state to restrict access to both abortion and the ballot box. The escape hatch Alito offers opens on a brick wall.

Those restrictions came at a cost: Trust in the court has fallen in response to repeated unpopular rulings. And though John Roberts has repeatedly placed institutional legitimacy at the center of his work as chief justice, he had already largely failed on that front even before 2020, when he found himself on a court with five justices solidly to his right. Those justices do not share Roberts’ concerns with appearance and are likely to follow the decision to overturn Roe with other unpopular rulings.

Though Alito assures readers that overturning Roe will not threaten other basic rights (just as Justices Brett Kavanaugh and Neil Gorsuch assured Americans they considered Roe to be settled law), there is no reason to believe that is the case. The legal justifications underpinning the right to an abortion are foundational to other key decisions as well: Griswold v. Connecticut, which ruled states could not outlaw contraception; Loving v. Virginia, which ruled states could not outlaw interracial marriage; Lawrence v. Texas, which ruled that states could not outlaw sodomy; and Obergefell v. Hodges, which ruled states could not outlaw same-sex marriage. If you’re comforting yourself with the fantasy they wouldn’t go that far, think again: Republicans are already eyeing Obergefell.

Those future consequences matter. But the draft opinion in Dobbs is important even without the ripple effects. Because this is ultimately a decision that will affect millions of women and their control over their bodies, their lives, their futures. And, to be clear, this decision will have a body count. Nor will the tradeoff be a dramatic decline in abortion. Abortions occur whether the procedure is legal or not.

Of course, if the lack of exception to recent abortion bans for the life of the mother is any indication, not even more dead mothers will likely change right-wing radicalism on abortion. A party that calls itself pro-life has already (in tandem with the gun lobby) rejected popular and necessary actions that would curb gun deaths and Covid-19 deaths. Dead mothers, dead 6-year-olds, dead grandparents: None of these sympathetic victims has moderated the American right.

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    That means people who are committed to protecting maternal and reproductive health have an enormous, multipronged fight ahead. The most immediate work must be to fund and strengthen groups providing reproductive health care to those cut off from it. That work must take place alongside efforts to improve maternal health outcomes and support new parents both physically and economically.

    At the same time, supporters of reproductive health care must also engage in a much larger project to build a liberal democratic order to replace the illiberal order that now governs the US. That new order must protect basic rights, meet basic needs and enable robust participation in representative communities and governments. That is a daunting project to undertake, but if activism stops at the ballot box, then the move to overturn Roe will be just one more deplorable act by a government that neither abides by the will of the majority nor protects the rights of the vulnerable.