Scotus Abortion Bombshell to Nuke Women, LGBTQ, Human Rights

America’s status as traditional liberal democracy is at stake

Last night about 8:30 PM in Washington D.C., Politico dropped a bombshell that has women, LGBTQ people, and marginalized minorities of all stripes howling in fear and outrage. You’ve probably at least heard about Justice Samuel Alito’s draft Supreme Court majority opinion overturning Roe vs. Wade. If you haven’t, the best analysis available so far is in Slate by Mark Joseph Stern, who interrupted his vacation to focus on this crisis. Go there now for all the details. For a more concise summary, read Brody Levesque in the LA Blade.

I’m going to summarize then opine about a coordinated response. I’ve spent hours on the phone with feminist and LGBTQ activists, lawyers, and journalists. A consensus is already emerging about the most regressive threat to traditional liberal democracy this country may ever have seen. So, let’s dive in.

Alito’s declaration that rights not enumerated in the Constitution must be firmly rooted in American history destroys the possibility of progressive legal reasoning.

If you don’t have time for Stern’s article, here are four critical takeaways:

1. The high court intends to strike down Roe v Wade in its entirety, replacing it with nothing. If his draft stands, dozens of state laws criminalizing women and/or doctors over abortion will go into effect immediately after the court ruling. Some women leaving their home states for a legal abortion elsewhere could face felony charges and prison sentences. Few court watchers expected a decision this sweeping. American women are about to lose the most fundamental human right — the right to control their own bodies without State interference.
2. The leaked draft is unprecedented, shocking, and real. Alito almost certainly wrote it and circulated it in late February. (Breaking: Chief Justice Roberts just confirmed the draft is authentic.) Somebody at the Supreme Court decided to leak it, likely because it represents the current consensus of a majority of justices. Somebody at the court, possibly even a justice, is so worried they want to engage public opinion and try to influence the majority to tone down their radicalism. Nothing like this has happened before. Ever.
3. Alito’s reasoning attacks not just firm legal precedent, but more than a century of mainstream legal thinking about “unenumerated rights” and the nature of liberty itself. If this draft becomes the Supreme Court’s majority opinion later this summer, everything is called into question— from civil rights, to gender equality, to sexual privacy, to same-sex marriage, to the right to contraception. Alito’s declaration that rights not enumerated in the Constitution must be firmly rooted in American history destroys the possibility of progressive legal reasoning. It enshrines the past (with all its racism, sexism, and homophobia) as the the only standard by which judges can rule to keep the State out of people’s private lives. While he writes that this decision impacts only abortion, his regressive reasoning would still become the law of the land.The State could outlaw private sexual expression, same-sex marriage, equality for women, and just about anything else without constitutional brakes or court oversight. In fact, Alito explicitly attacks Lawrence v Texas and Obergefell v Hodges, which forbid the state from outlawing private sexual expression and same-sex marriage, respectively.
4. An overwhelming majority of Americans will be outraged by this decision, and Alito is trying to encourage the other conservative justices to stay on board anyway. He spends paragraphs urging his colleagues to ignore public opinion and the practical, negative consequences of their ruling. He sidesteps the reality that the decision doesn’t just ban abortion, but would inevitably strip the Supreme Court of its role protecting “unenumerated” civil and human rights Americans take for granted as citizens of a modern liberal democracy.

LGBTQ activist organizations are uniting behind women, and urge the public to take to the streets

LGBTQ advovates have been burning up phone lines conferencing since last night. The consensus of every mainstream agency is that Alito’s draft is an existential emergency.

• Women must not lose the right to control their own bodies. Trans and nonbinary people can become pregnant and decide to have abortions, and their rights must be protected too.
• Liberal democracy itself must be protected. The rights of marginalized minorities must not be subject to erasure by the will of the majority.

The hallmark of every modern liberal democracy is the safeguarding of the human rights of women and minorities. In the E.U., the Council of Europe and the European Court of Human Rights protect citizens of member states, enforcing rights guarantees not subject to ballot box or political erasure. The Canadian Charter of Rights and Freedoms of 1982 empowers the Supreme Court of Canada to perform the same role.

This safeguarding is part of what makes a liberal democracy a liberal democracy. Justice Alito’s draft, if it were to become final, would not just erode rights for women, but would strip judges of the right to stop the State from stripping fundamental human rights from American citizens. The U.S. would no longer be, in practice, a functioning liberal democracy. This is something that worried our founders, who warned about a “tyranny of the majority” when they expressed the notion that unenumerated rights are sancrosect.

If this draft becomes final, the human rights of women and members of marginalized minorities, including gender and sexual minorities, would exist at the whim of elected representatives. That’s especially frightening in light of the fact that conservatives and the Republican Party have made great inroads recently in establishing and maintaining minority rule, in suppressing the Black vote or making Black votes count less than white votes.

The vast majority of Americans support the right of women to choose abortion and support full civil and human equality for LGBTQ people. But the Republican Party has declared war on those rights and those people, often cementing minority power to do it.

The Supreme Court is about to take itself out of the game, declaring that its role protecting human rights is all but dead. This must not stand.

Will the Supreme Court unleash a massive Democratic wave this November?

If Alito’s draft becomes the law of the land later this summer, the only solution will be massive turnout at the polls to elect an overwhelming Democratic Congress — to begin Supreme Court reforms to mute the influence of the radical, anti-democratic justices Donald Trump appointed.

Can that happen?

If all Americans who value human rights work together, it absolutely can. We can thank whoever leaked this draft for alerting us to the critical need to pull together starting right now.

Street protests begin tonight. Look up your location and make your voice heard.

It’s not too late to convince the radical conservatives on the high court to back off their plans to destroy liberal democracy and the protection of human rights. If the justices see the nation roar with one voice, they might feel no choice but to back down. Find your protest here, at Breaking The Chains, or just google. Community organizers everywhere are putting plans in place. Your voice is needed. Find out where to go and BE THERE TONIGHT:

America, we can’t take this attack lying down. Now is the time to set aside our differences and work to together as one to stop the most radical attack on liberty in living memory.

James Finn is a columnist for the LA Blade, a former Air Force intelligence analyst, an alumnus of Queer Nation and Act Up NY, and an “agented” but unpublished novelist. Send questions, comments, and story ideas to [email protected].

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