Killing Roe may not end this Supreme Court's erosion of 'privacy-based rights,' Politico's Gerstein says

published 3 May 2022

The Supreme Court is on the verge of striking down Roe v. Wade, the 1973 ruling that recognized a constitutional right to legal abortion, according to a draft majority opinion by Justice Samuel Alito published by Politico on Monday night. The three cable news networks all covered this bombshell Monday night, with slightly different emphases.

"My initial reaction is that it's stunning on so many levels," legal analyst Joan Biskupic told Anderson Cooper on CNN. Chief Justice John Roberts, "already concerned about the integrity of the court, and public opinion of the court," seemed ready to uphold Mississippi's 15-week abortion ban while not overturning Roe, she said, explaining why "it was really in the interests of no one, of the nine justices, to have it come out like this."

"Obviously this is a very unusual, if not completely historically unprecedented leak" MSNBC's Rachel Maddow told Politico's Josh Gerstein, one of the two reporters who broke the story. "We are very confident in the authenticity of this draft majority opinion," Gerstein said, but "this final decision likely won't be published until the end of June, perhaps even the beginning of July," and "I can't promise you that various things may not change between now and late June."

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In his draft, Alito doesn't preclude a federal abortion ban, but "if we move away from abortion to other privacy-based rights such as contraception, rights like gay marriage, he does try to ring-fence this opinion and say all we're talking about is abortion — he mentions that several times," Gerstein noted. "That said, I'm old enough to know that the court many times has said, 'Don't try to apply our opinion on X to this situation Y, because it's different,' and yet it often does get applied that way."

The Washington Post reported Monday morning that Republicans have been strategizing on how to enact a nationwide ban should the Supreme Court strike down Roe, Maddow noted, and "to have that paired tonight with this draft opinion saying that the Supreme Court is about to clear the way just for that means that we are on the precipice of becoming a very different country, and our daughters and granddaughters living in a very, very different world," where the state determines if they give birth or not.

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Peter has worked as a news and culture writer and editor at The Week since the site's launch in 2008. He covers politics, world affairs, religion and cultural currents. His journalism career began as a copy editor at a financial newswire and has included editorial positions at The New York Times Magazine, Facts on File, and Oregon State University.