Editorial boards and journalists warn that reversing Roe will ‘intensify’ America’s already-bitter divisions

For decades, Christian nationalists and far-right social conservatives have been calling for the U.S. Supreme Court to overturn Roe v. Wade — and now, it appears that they will finally get their way. Justice Samuel Alito, in a leaked majority draft opinion first reported by Politico on Monday night, May 2, stridently makes an argument for overturning Roe. Millions of Americans are livid, while Christian nationalists are celebrating the decision. And New York Times columnist Michelle Goldberg, Washington Post columnist Dana Milbank and the St. Louis Post-Dispatch’s editorial board have a warning: as angrily divided as the United States has been, Roe’s demise will make the country’s bitter, ugly tribalist divisions even worse.

The Post-Dispatch’s editorial board, in an editorial published on May 5, stresses that the implications of Alito’s draft opinion go way beyond abortion and could affect everything from gay rights to interracial marriage.

“Alito’s assertion that abortion rights don’t fall under the 14th Amendment, and that the Constitution makes no mention of abortion as a right, calls into question a wide range of other supposed rights for which no mention of any kind appears in the Constitution,” the Post-Dispatch’s editorial board warns. “Alito basically would establish an entirely new bar for basic rights that cannot be met under a strict reading of the Constitution — not just including divisive issues such as gay marriage, but also, whether there is a right for gun owners to possess ammunition. The Constitution doesn’t specifically spell out a right for interracial couples to marry. Under Alito’s rationale, all those supposedly settled issues, widely accepted as basic rights, now could be subject to challenge.”

Goldberg, in her May 6 column, predicts that conservative and liberal Americans who already “hate each other” will become even more divided in a post-Roe America.

The columnist predicts, “The demise of Roe will exacerbate America’s antagonisms, creating more furious legal rifts between states than we’ve seen in modern times…. Very soon, if the Supreme Court really discards Roe and Planned Parenthood v. Casey, the 1992 decision partly upholding it, we will have two wildly different abortion regimes in this country. About half of states are expected to mostly prohibit abortion; according to the Guttmacher Institute, in 11 states, there won’t even be exemptions for rape and incest. A bill moving through the Louisiana Legislature would allow prosecutors to charge those having abortions with homicide. Blue states, meanwhile, are setting themselves as abortion sanctuaries.”

In his draft opinion, Alito used a states’ rights argument to defend overturning Roe — saying that Roe never should have set a national standard for abortion’s legality or illegality. But Goldberg explains why red states and blue states won’t be able to peacefully coexist with different abortion standards. “Interjurisdictional” battles, Goldberg notes, are already emerging, and Missouri State Rep. Mary Elizabeth Coleman has “introduced a measure that would let private citizens sue anyone who helps a Missouri resident get an out-of-state abortion.”

Goldberg writes, “Conservatives, of course, have a plan for reconciling clashing abortion laws — a federal abortion ban…. It’s easy to imagine conservative activists demanding that their leaders jettison the filibuster in order to push through a national abortion ban. It’s hard to imagine the Republican senators who’ve defended the filibuster putting procedural principle above one of their base’s most cherished goals.”

The Times columnist continues, “But long before we get there, the death of Roe will intensify our national animus, turning red states and blue into mutually hostile legal territories. You think we hate each other now? Just wait until the new round of lawsuits start.”

Milbank, in his May 6 column, views the overturning of Roe as an example of a radical minority inflicting its will on the majority.

“The reported 5-to-4 split on the draft shows that this cataclysmic ruling would be forced on the public by the narrowest possible majority,” Milbank argues. “This means the ruling is possible only because of the seat on the Court (Sen. Mitch) McConnell and his Republican colleagues effectively stole by refusing, for 293 days, to confirm — or even consider — President Barack Obama’s duly nominated candidate, Merrick Garland. Republicans handed that seat, in 2017, to Neil Gorsuch — in the process going ‘nuclear’ and eliminating the filibuster so that only Republican votes were needed for confirmation.”

Milbank adds, “Then, in a feat of astounding hypocrisy, McConnell’s Republicans reversed their pious claim that Supreme Court vacancies late in a presidency should be left to the ‘next president’ and confirmed Amy Coney Barrett eight days before Joe Biden was elected president — essentially stealing a second seat. Some justices reported by Politico to be voting to overturn Roe now stand accused by Republican Sens. Susan Collins (Maine) and Lisa Murkowski (Alaska) of misrepresenting their positions on the ‘super precedent’ during their Senate confirmations.”

The Post columnist also points out that Democrats won the popular vote in seven of the United States’ last eight presidential elections. Yet GOP-appointed justices now enjoy a 6-3 majority on the High Court.

In an op-ed published by the Salt Lake Tribune in Utah on May 6, retired physician Ellen Brady observes, “If the leaked opinion stands, two of the votes for it would apparently be cast by justices credibly accused of sexual misconduct and ethical lapses; three votes from justices appointed in a precedent-breaking manner by a lawless president who was elected without a majority of the popular vote.”

McConnell, Sen. Lindsey Graham of South Carolina, and the Daily Wire’s Ben Shapiro are among the Republicans who have been hyperventilating over the leak of Alito’s draft opinion. But Edward Wasserman, a journalism professor at the University of California, Berkeley in Northern California, has a very different viewpoint. In an op-ed published by the San Francisco Chronicle on May 6, Wasserman argues that the High Court is badly in need of some scrutiny.

“The opinion became headline news through an unauthorized leak, a frontal assault on the Supreme Court’s curious and longstanding immunity from even elemental accountability,” Wasserman notes. “It’s about time that immunity was defied…. A document leaked from most any federal agency that upended longstanding policy would unquestionably be legitimate news, even if it was preliminary, even if exposure would gum up a cozy internal process, even if the leak broke agency rules.”

The Supreme Court, Wasserman adds, should not be exempt from “accountability.”

“Perhaps the leak will inaugurate a new era for the Court,” Wasserman writes. “Maybe there will be more impertinent reporting that exposes the reasoning, bargaining, trade-offs and personal dynamics that drive constitutional lawmaking at the highest levels. Rather than something to be dreaded, such transparency would leave us all better informed and more fully empowered to play the role the system prescribes for us — to shape our collective future.”