Leaked SCOTUS Opinion Relies on Misinformation and Tropes of the Anti-Abortion Movement

Leaked SCOTUS Opinion Relies on Misinformation and Tropes of the Anti-Abortion Movement
6/13/2022 by Rachel Rebouché and Mindy Roseman
Abortion law has not been a story of long criminalization with the blip of Roe over the last 50 years. Rather, the trend has been support for abortion rights and laws that reflect it.



Abortion rights supporters march outside of the Austin Convention Center where the American Freedom Tour with former President Donald Trump is being held on May 14, 2022 in Austin, Texas. The protests were a response to the Supreme Court’s leaked draft opinion indicating the Court’s willingness to overturn Roe v. Wade. (Brandon Bell / Getty Images)

Justice Alito, in the leaked draft of the majority opinion in Dobbs v. Jackson Women’s Health Organization, employs a number of arguments to erase constitutional abortion rights. One of them has not received as much attention as the others: Like at oral argument in the case, Alito refers to the United States as an outlier among nations—one of six countries—because it permits terminating a pre-viability pregnancy “on-demand after the 20th week of gestation.” In this account, the U.S. stands only with Canada, China, the Netherlands, North Korea, Singapore and Vietnam, as well as Iceland and Guinea-Bissau. Forbidding abortion after 15 weeks—as the Mississippi law under review in Dobbs does—seems quite permissive from such a perspective.

Let’s examine the facts—starting with the assertation that the U.S. permits “nontherapeutic or elective abortion-on-demand after 20 weeks.” According to Planned Parenthood v. Casey, a 1992 case interpreting Roe v. Wade, the Supreme Court noted:
“Even the broadest reading of Roe, however, has not suggested that there is a constitutional right to abortion on demand. Rather, the right protected by Roe is a right to decide to terminate a pregnancy free of undue interference by the state.” Before fetal viability, under Supreme Court jurisprudence, states are able to regulate abortion access in myriad ways: States require abortion seekers to wait up to three days after first visiting a provider; states order abortion seekers to undergo ultrasounds, be shown the image, and listen to a fetal heartbeat while hearing a state-mandated speech that often contains misinformation and dubious claims, such as abortion increasing risk of breast cancer (among other things).
. . . .



Consider a final aspect of Alito’s argument: He justifies his nullification of abortion rights by looking to the comparative history of abortion law. In this regard, he walks the same path as Justice Kennedy, who famously looked to the historic and comparative evolution of laws regarding sodomy to overturn Bowers v. Hardwick and apply constitutional protection to same-sex intimacy in Lawrence v. Texas. But Alito is walking in the complete opposite direction.

The steady march of countries is toward liberalizing abortion laws and recognizing the equality of women and gender-diverse people. This ignores context in favor of pretext: Abortion law, in the U.S. or across the world, has not been a story of long criminalization with the blip of Roe over the last 50 years. Rather, the trend, on the whole, has been support for abortion rights and laws that reflect it.


https://msmagazine.com/2022/06/13/abortion-on-demand-leaked-scotus-opinion-anti-abortion-movement/