New York’s senior senator, Charles E. Schumer, had it correct on Tuesday after a draft version of an expected Supreme Court decision to allow states to outlaw abortion was published against the justices’ wishes. “Republicans are spending all their focus on the leak because they don’t want to focus on Roe v. Wade,” Senator Schumer said. “They know they’re on the wrong side of history. They know they’re on the wrong side of the American people.”
By the numbers, the senator appears to know what he is talking about; a January survey conducted by CNN found that 69 percent of Americans were opposed to overturning the landmark case of Roe v. Wade and Planned Parenthood v. Casey, the 1992 opinion limiting the right to an abortion but preserving the fundamental freedom to choose to terminate a pregnancy.
Suspicion for the unauthorized release of the draft has shifted rapidly from Democrats to Republicans who would have the most to gain from the stunning breach of court etiquette. Speculation has been that someone on the right, fearing a defection from an outright trashing of a 50-year precedent, gave the draft to Politico as a way to make any late-hour changes of heart among the justices that much more difficult. Republicans in competitive districts benefit as well: By having the leak to rage against, they can deflect attention from the consequences of taking away women’s essential right to control their own bodies. In one nightmarish scenario, even miscarriages could come under suspicion as states like Texas move to deputize citizens as abortion police.
Another obvious fear is that the court’s far right majority will not stop with abortion. Longstanding protection of voting rights, gay rights, and racial segregation could also be threatened if the court continues to walk away from its role as the Constitution’s fair arbitrator. Adding justices to the court, as has been widely discussed, could worsen its politicization. If President Biden and the Democratic-controlled Congress were somehow able to add four of their own liking, a Republican-dominated Washington would want to do the same. Remember that when he was Senate majority leader, Mitch McConnell, a red-state Republican, refused to allow consideration of President Obama’s choice to fill a Supreme Court vacancy. These days, holding the Constitution hostage is just something that Republicans do.
With the stakes for millions of American women so high, Congress should rapidly end the filibuster and pass a comprehensive, national legalization of abortion before a possible 2024 Republican majority ends the filibuster itself and imposes a coast-to-coast ban on the procedure.