"Justice" Alito Overturns Roe v. Wade

Democratic Congressmember Sean Patrick Maloney Says it All—“It’s November, Stupid” May 8, 2022


Does anybody in our “Team Blue” base still not get it? Let me spell it out once more. All elections, especially midterms count. Midterm elections are often the time when the GOP opposition gleefully looks at Democratic lethargy and pounces. Republicans watch too many of us carp and whine about how Democratic Presidents, be they Bill Clinton, Barack Obama or now Joe Biden, haven’t waved their “magic political wands” and solved our country’s or the world’s problems in a nanosecond. Never mind that Biden has only a 50-50 Senate that often requires VP Kamala Harris’s tie-breaking vote as well as a very small Democratic House majority. Never mind that conservative Senators Joe Manchin (D-WVA) and mercurial Kyrsten Sinema (D-AZ) keep throwing roadblocks at Biden and all GOPers vote “NAY” in lockstep following Mitch McConnell’s (R-KY) marching orders. Never mind that our country faces tough problems in tackling infrastructure improvements, social matters, and improving health care. Never mind that Biden has to lead the often-divided Western alliance against a brutal Vladimir Putin in his unprovoked war against Ukraine. And never mind that most of the GOP still remains a wholly owned subsidiary of its anti-democracy “leader” 2020 loser Demagogue Donald. Yes, there are more Democrats and Democratic-leaners than GOPers, but when we don’t come out to the polls, these statistics become meaningless. Because Democrats failed to strongly vote in 1994 and repeated this insane behavior in 2010, 2014, and 2016, we lost the ability to pass meaningful legislation. In those elections, “Team Red” repeatedly took back the House and Senate chambers, and in 2016 even the White House. For the past several months, major media outlets have written “process story” after “process story” about how disillusioned Democrats are with Biden and how they won’t heavily vote in the 2022 midterms. They declare “Team Blue” badly divided and in hopeless disarray. The media is, in many cases, already proclaiming the GOP the 2022 House and Senate midterm victors before a single vote has yet to be cast. However, this 2022 midterm Democratic “enthusiasm” problem may just have been solved thanks to one of the worst SCOTUS (the Supreme Court of the United States) drafts and, probably, final opinion.


In an unprecedented leak, the Supreme Court, in a 5-4 May 2, 2022 98-page draft, obtained by Politico and authored by hard line “W” Bush appointee Samuel Alito, SCOTUS overturned in no uncertain terms, the nearly 50 -year-old right women have to abortion under the late Justice Harry Blackmun’s Roe v. Wade decision (huffpost.com, O’Connor, 5/04/22). And “rounding up the usual suspects,” H.W.’s appointee Clarence Thomas and the three Trump appointees, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett joined in this sweeping draft opinion. The three Trump appointees, of course, spoke of “Roe” in their confirmation hearings as settled precedent. Frankly, these were just blatant lies or “confirmation conversions” on their part that were influential in “duping” Maine’s GOP Senator Susan Collins and Alaska’s GOP Senator Lisa Murkowski. Once settled into their lifetime appointments, this “Gang of Five” threw the heavily revered legal concept of stare decisis or “let the decision stand” right out the High Court’s windows. The case, “Dobbs v. Jackson Women’s Health Organization,” was supposed to be decided at the end of June or early July, 2022, when most controversial cases come down. The issue in Dobbs involved whether all pre-viability prohibitions on elective abortions are unconstitutional which would overrule Roe (See scotusblog.com). Yes, this Alito opinion, as Chief Justice (CJ) Roberts stated was not a final one and votes are known to change in many final opinions. In 2012, CJ Roberts himself was initially in favor of overturning Obamacare, but changed his mind in the end (cnn.com). However, if any reasonable person thinks that this hard core Five would change their minds in this abortion case, I’m ready to sell you a bridge in Kings County, NY dirt cheap. Though many conservatives blame a liberal Justice or their law clerks for leaking this draft, it is more than possible that a conservative Justice or clerk was the culprit. By leaking this draft, conservatives hope to make sure that none of the “Gang of Five” ever thinks of changing their opinion. To do so after this leak, would bring nothing but permanent shame on such a Justice and cut him/her off from their lifelong allies.


Since the Roe opinion came down, GOPers have been obsessed and then some in overturning that case’s right to choice for women. While far too many Democrats in 2016 were unconcerned with the issue of SCOTUS appointments, many GOPers “held their noses” and voted for Demagogue Donald solely because he promised to appoint High Court Justices who would overturn Roe v. Wade. And Donald sure delivered. In oral arguments in the Dobbs case, CJ Roberts tried to keep one or two of these five Justices in Alito’s draft opinion with him by upholding Mississippi’s radically early 15-week ban on abortion. However, CJ Roberts still wanted to keep intact the federal right to abortion (cnn.com, de Vogue, 5/03/22). Since Trump put Kavanaugh and Coney Barrett on SCOTUS, CJ Roberts has effectively lost control of his High Court. Many commentators are now arguing that Clarence Thomas is the real Chief Justice.


Under Supreme Court practice, when the CJ is in the majority, he assigns the writing of the opinion. When he is in the minority, the senior Justice in the majority decides who writes the decision. In this case, Clarence Thomas had that dubious “honor.” IMHO, because of the recent controversy involving Thomas’ wife Ginny and her influence on her husband and Trump’s aides in the 2020 election controversy, Thomas gave Alito, the chance to write this decision. And Alito is a star in conservative circles who never fails to disappoint. Alito’s draft could not have been worse. The phrases he used were right out of the evangelical and ultra-conservative legal Federalist Society playbooks. And here are the party line phrases that Alito put into his draft. Just five pages into his opinion, Alito declared, Roe (and the Casey decision upholding Roe in 1992) “must be overruled.” Alito stated what all critics of Roe always begin their arguments with, “The Constitution makes no reference to abortion.” Alito argued that although some rights that the Due Process Clause of the 14th Amendment might guarantee aren’t explicitly mentioned in the Constitution, such rights have to be “deeply rooted in this nation’s history and tradition. The right to abortion does not fall within this category (cnn.com, de Vogue, 5/03/22).” Alito added, “Roe was egregiously wrong from the start and its reasoning exceptionally weak.” In Alito’s draft, “it’s time for the issue of abortion to go back to the states: That is what the Constitution and the rule of law demand (cnn. de Vogue).” Alito’s personal bias was loud and clear. It is right off a “Right to Life” placard or bumper sticker. He distinguished Roe from other decisions involving matters such as sexual relations, contraception, and marriage. He stated abortion is fundamentally different, “because it destroys fetal life (de Vogue, cnn.com, 5/03/2022).” Alito noted that women are well represented in the U.S. today and can fight for their views on pro-choice in all states. Get real! Nearly half the states have laws on the book or soon will banning abortion (de Vogue, cnn.com, 5/03/22, huffpost.com, O’Connor, 5/04/22). Alito stated Roe “had short circuited democracy (de Vogue, cnn.com, 5/03/22).”


Not only is Alito’s draft just one of empty Religious Right/Federalist Society sloganeering. It is full of legal errors about abortion’s place in the U.S. His draft also quotes a reactionary 17th Century English jurist for support. According to Aaron Tang, a former law clerk to Justice Sonia Sotomayor and now a law professor at UC Davis, Alito’s views to the contrary, our nation’s history actually does support a right to abortion for much of early pregnancy. At the time of our nation’s founding, people made a “distinction between pre-and post-quickening abortions.” According to Tang, abortions were criminally punishable only if performed after quickening—the first notable movement of the fetus, which often occurs around 15-16 weeks in pregnancy. Even Alito noted this fact in his draft. So suddenly, Alito, a fellow, like Justice Thomas supposedly obsessed with the “original intent of the Founding Fathers” and Constitution’s framers, pivots his argument to a new assertion. He calls the Founding-era quickening rule of “little importance because when the 14th Amendment was ratified, 28 out of 37 states had enacted statues making abortion a crime even if performed before quickening (Tang, latimes.com, 5/05/22).”


Despite all this talk, Alito’s claim is very wrong. In his draft opinion’s appendix dealing with abortion laws at the time of the 14th Amendment’s adoption, Alito includes Nebraska and Louisiana as states banning all abortions at any time in pregnancy. Both of these states, however, actually banned only certain dangerous kinds of abortions, namely the use of “any poison or other noxious substance (NE),” or “any drug or potion (LA).” Neither of those states prohibited the common practice of abortion via surgical instruments. Alito’s poorly crafted appendix additionally includes Florida. FL did not ban abortion until after the 14th Amendment was ratified. Alito’s appendix again errs with listing Oregon as banning pre-quickening abortions. OR prosecutors admitted that under their law, enacted in 1854, “abortion is not a crime unless it results in the death of a quick fetus (Tang, latimes.com).” And Alabama is also on Alito’s appendix as banning pre-quickening procedures as early as 1841. However, in 1857 AL’s Supreme Ct. made clear that banning abortions on “any pregnant woman” meant what it had always meant in the common law, a woman who was “quick with child.” A pre-quickening abortion was, therefore, “not punishable by law” in Alabama. According to Tang’s careful analysis, the best evidence is that only 16 of 37 states banned pre-quickening abortions when the 14th Amendment was ratified. In the other 21 states, abortion was perfectly lawful through roughly 16 weeks of pregnancy. As one pastor told a married woman who consulted him about a pre-quickening abortion, such act was “no crime, because the child was not alive (Tang, latimes.com, 5/05/22).”


And get this. In his awful draft, Alito repeatedly cites half a dozen times an English jurist, Sir Matthew Hale, a fellow born in 1609, as proof that abortion bans are an indispensable part of our country’s heritage. Hale wrote that if a physician gave a woman “with child a potion to cause an abortion, and the woman died it was ‘murder’ because the potion was given ‘unlawfully to destroy her child within her (huffpost.com, O’Connor, 5/04/22).’” Hale’s record also included having two women executed for “witchcraft” and writing in defense of marital rape (huffpost.com, 5/04/22, O’ Connor)! Hale, Justice Alito’s idol, lived in an age when doctors didn’t even have a scientific understanding of where babies came from.


Most Democrats, indeed, most Americans are overwhelmingly outraged by Alito and his overturn reactionary Roe gang. As President Biden rightfully stated, “What are the next things that are going to be attacked? Same sex-marriage? Contraception which was upheld in the 1965 Griswold v. Ct. opinion upon which Roe was based? One can’t trust the present Trump-captured SCOTUS to uphold any cases from now on that oppose its rigid reactionary ideology. Justice Sonia Sotomayor, in the MS case oral argument aptly stated, the High Court’s leaning toward banning abortions creates a “stench” that its reading of the Constitution on abortion is just a “political act (latimes.com, Tang, 5/05/22).”


And how do we answer this probable overruling of a law that has given millions of American women the right to reproductive choice? With politics ourselves. Fifth-term Congressmember Sean Patrick Maloney (55) chairs the Democratic Congressional Campaign Committee (DCCC) which finances and recruits Democratic candidates to run for Congress. Rep. Maloney comes from an ultra-swingy district, NY’s 18th Congressional District (CD). This is the Newburgh/Poughkeepsie area that has a Cook Partisan Voting Index (PVI) of R+1. Cong. Maloney is gay and has worked extensively in both NY and national politics (Cohen & Cook 2022 Political Almanac). Cong. Maloney said it all. Maloney declared, “Democrats: We’re angry and hurt. But it’s not about filibuster, size of the court, or what the Senate hasn’t passed. It’s about Republicans, not us. We can save our freedoms. But it’s November, stupid (cnn.com, Krieg, Merica, & Bradner, 5/04/22).” Hear that? “It’s November, stupid.” That means getting out in humungous droves plus to vote for all Democrats to defeat the anti-choice Roe-repeal Republicans in the House, Senate, Governors’ mansions, and state legislatures. Already demonstrations to protest Alito’s repeal of Roe are being organized throughout the nation. Democrats in swing districts, along with dripping “Blue” ones have rarely been so united. House and Senate Democrats aim to put GOP legislators on record on how they feel about repealing Roe and sticking it to them in every campaign they run. Donations to Planned Parenthood are soaring. The public is overwhelmingly with us. While Alito’s “Gang of Five” lives in its social conservative/Fox News bubble, Americans favor keeping Roe by a 54%-28% margin, according to a recent Washington Post-ABC News Poll. Other polling indicates over 60% back Roe (See latimes.com, Bierman, Savage, & Stokols, 5/04/22). Again, listen to Cong. Maloney. There are more of us in the “Blue” and pro-choice camp than in the extremist Trump corner. “It’s November, stupid.” Vote, vote, and vote. Our democracy, including a woman’s right to choose, depends upon it.