A high court that tosses out a “right to privacy” need not stop there. Marriage equality, as between gay couples and straight couples, guaranteed by the 2015 decision Obergefell v. Hodges (and written by Republican appointee Anthony M. Kennedy) is now also threatened. There is obviously no tradition of same-sex marriage per se, but Justice Kennedy’s brilliant opinion allowed the court to reach deeper into the American tradition of liberty to generalize about the rights and freedoms at stake. The same move made in the draft opinion about abortion, however, can be used to overturn Obergefell.
Around 60% of Americans think abortion should be legal in all cases. In 2015–2017, 64.9% of the 72.2 million women aged 15–49 in the United States were currently using contraception. As of 2021, a record high 70% of Americans support same-sex marriage. That’s marriage, not just a right to have sex. These are huge swaths of the population who will not take kindly to an unelected, out-of-control Supreme Court and a fascist Republican party insisting on telling us how to run our private lives.
Why might this lead to civil war? Because the Republicans for decades, and especially since Trump, have been working hard to prevent the majority of the country from having its way. Up until now, that obstruction has mainly affected people on the margins of society. Now it has been unmistakably revealed that they are taking aim at all of us. They re aiming not just to reverse the right of privacy, but possibly even the XIV Amendment’s application of the Bill of Rights to the states.
The Republicans are furious over the Alioto draft leak because it revealed their intentions before they were ready, and in time to impact the primary season. No wonder they are refusing to talk about the substance of the draft.
One strategy the Democrats need to start right now — and appear to be already starting — is to trumpet this loudly, powerfully, and constantly. (On the other hand, see Democrats need to truly engage the abortion fight.) Force Republicans to own up to their schemes. But I fear that no matter what we/they do, it will not be enough to achieve a peaceful restoration of our liberties and privacy.
There are two reasons for this: First is that the electorate is still closely divided and driven by partisanship. Even if we can — as we should — use this draft to rally voters now, the best midterm scenario would still leave us with a handicapped Congress that will be blocked from making things better. Second is that the Supreme Court is now in the hands of a radical 5-person majority who are committed to reversing all the gains basically made since the Civil War, and who have nothing standing in their way. We can’t realistically impeach them, we can’t expand the Court, and we certainly can’t amend the Constitution to block them.
Alito’s aggressive ruling would reach way beyond Roe
The caustic tone and aggressive reasoning suggest this conservative majority feels unconstrained. It does not fear political pushback for its angry tirade against abortion. It does not feel any sense of obligation or concern for the women who will suffer as a result of the opinion. And it has no sense of institutional propriety that might lead it to act with more humility and caution.
There has been talk here that we should not abandon the red states but instead work to turn them blue. The problem with that is that it would take years, and already the Republicans are putting voter suppression tactics to ensure themselves permanent control regardless of the majority. That means, of course, that regardless of how many blue state representatives we can elect, they will still control the Senate and have the advantage in the electoral college.
This crisis has been in the making for a long time. I recently calculated that by 2030, 30% of the country would control 70% of the Senate. Now it seems Supreme Court is advancing that timetable: the 30% or so of the country that wants Roe reversed is poised now to take over.
There is no way this ends well. There is no way the fundamentalists and the power-mad will pull back now that they are so close to reaching their goal, and there is no way the majority of the country will accept it. (The immediate, massive, and continuing protests following the leak of the draft are evidence of that.) At some point in the not-too distant future, the republic will cease to exist.
I would like to believe that when that happens, it will happen with a minimum of bloodshed. Given the amount of blood that has already been shed, and the number of arms being stockpiled (mostly by the batshit right), I’m not very hopeful.