Illustration by Jam Moreno.

Roe v. Wade Under Threat: The Dangers of Minority Rule in the United States

The recent leak of a draft opinion repealing Roe v. Wade has shaken the American political sphere. What implications does this decision, borne out of minority rule, have for the future of U.S. politics?

May 9, 2022

After the historic leak of an important Supreme Court draft opinion, Americans woke up on May 3 to the news that five Supreme Court Justices supported overruling Roe v .Wade and Planned Parenthood v. Casey. Justice Samuel Alito described the ruling enshrining access to abortion in all states as “egregiously wrong from the start” with “exceptionally weak” reasoning and “damaging consequences”. Chief Justice John Roberts, who is not in support of the draft opinion, confirmed the leak as authentic and described it as a “singular and egregious breach of trust”.
But what trust did many Americans have in the Supreme Court in the first place? The Supreme Court is an institution that has been fundamental to American democracy, and its presence has been enshrined in the balance of power created by the Constitution. But how did the current Justices obtain their appointments? President Barack Obama nominated the center-left Merrick Garland to the Supreme Court in 2016, but obstructionists led by Mitch McConnell refused to ever grant him a hearing. This seat vacated by Antonin Scalia upon his death was ultimately filled by the Trump appointee Neil Gorsuch, who is among the five in favor of the draft ruling. Had Garland been appointed to the court, the ruling would not have the necessary support of five out of nine justices.
For a look at the potential future of America, consider that currently Democrats hold the House, Senate and the Presidency. On June 29, 2020, then-candidate Joe Biden said on Twitter that “As President, I’ll codify Roe v. Wade and protect a woman’s constitutional right to choose.” Obviously, this did not happen. Roe v. Wade was perceived as settled law not under imminent threat and the Democrats’ majority was already tenuous and only held together by Joe Manchin and Kyrsten Sinema. Currently, Joe Biden’s approval rating is underwater by 10 percent. This makes it highly likely that, without drastic political mobilization, Republicans will take back the House and Senate in 2022 and the Presidency in 2024. It is difficult to imagine who could fulfill the post-Trump Republican power vacuum besides Trump himself or someone modeled on his political path.
To be clear, the majority of the American people do not support the Supreme Court’s decision. Voters oppose overturning Roe v. Wade by a 2-to-1 margin. Will this prospective move have consequences for Republicans at the ballot box? Released six months before the 2022 midterm elections, this leak could perhaps be a “trial balloon” to gauge the panic generated by a repeal, and hope that the American public moves on in a few months’ time. Then what could be next?
There is a particular irony in that four of the five Justices who wrote about Roe “short-circuiting the democratic process” with its passage were themselves appointed by presidents who won their elections without a popular vote victory. One of them, George W. Bush, was effectively appointed by the Supreme Court when they ruled that the Florida Supreme Court’s call for a statewide recount violated the Equal Protection Clause of the Fourteenth Amendment.
The Opinion states that legal protection for abortion is not “deeply rooted in this Nation’s history and tradition”. Many civil protections taken for granted in the developed world are not part of America’s “history and tradition”. Interracial and same-sex marriage, desegregation and access to contraceptives among other rights were never enshrined in this 1950s vision of America that Samuel Alito beckons to. Many more rights are at stake than immediately meets the eye — an entire web of rights related to intimate relationships are under threat.
Indeed, Obergefell v. Hodges, the ruling that legalized same-sex marriage is explicitly mentioned in the ruling as well. In her confirmation hearing, Justice Amy Coney Barrett would not even defend Griswold v. Connecticut — the right to privacy for married couples — as legitimate precedent at her confirmation hearing. Should this opinion pass, the stage is set for the Supreme Court to chip away at numerous other rights in the United States.
This is not to say that America will instantly descend into some nationwide dystopia — many states have pledged to continue upholding these rights. But 23 states would likely ban abortion quickly and it remains to be seen what wannabe Trumpist governors like Ron DeSantis will pass in their states in the future. The state of Louisiana has already proposed a bill to make abortion a crime of homicide. What you can do in terms of your reproductive health in America may soon depend entirely on the state you live in.
Trust in the political fabric of America — domestically and internationally — is waning. Samuel Alito also authored two decisions dismantling much of the Voting Rights Act. As a reactionary institution, the Supreme Court has been twisted to serve the interests of a particular group in power today. It is no wonder that seven in 10 Americans say that the country is in crisis and at risk of failing. As trust in the Supreme Court and American democracy in general is further undermined, we once again see the importance of political action and looking outside the U.S. for global leadership. Feminists in Latin America are still tirelessly fighting for their rights, especially in regards to abortion rights, and can serve as a model for us. In the meantime, the internal divides within America are fast becoming irreconcilable.
Jam Moreno is Senior Multimedia Editor. Email him at
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