The leaked draft opinion that showed the U.S. Supreme Court’s conservative majority moving to overturn Roe v. Wade sent shockwaves through the country and reignited a longstanding debate on one of the most polarizing issues in our culture wars. While it will be several months until we know how this decision will play out in our highest court, one thing’s for certain: this stunning development will fundamentally alter the country’s short-term political trajectory.
The leaked 98-page draft document, first obtained by Politico, was written in February by Justice Samuel Alito and received supporting votes from the Court’s conservative flank: Clarence Thomas, Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett. It suggested the Court would repeal Roe v. Wade, the landmark 1973 decision that ruled women have a constitutional right to an abortion. In the document, Alito claims the Constitution makes no reference to abortion and therefore confers no right to one, which means it’s not an issue for the Court to decide and is a matter instead better placed in the hands of our elected representatives, leaving abortion’s legality to be decided on a state-by-state basis.
It’s an extraordinary development, even more so when you consider it’s the first time in history a draft of a Supreme Court pending decision has been leaked. Granted, it’s an early draft, leaked months before the Justices had reached an official decision. The Court’s opinions typically undergo a lot of deliberation, and votes and language can—and usually do—change before a final decision is made.
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Still, if the Court repealed Roe, the ruling would disrupt longstanding legal precedent and effectively turn the country’s abortion laws back a half-century, drastically curtailing reproductive rights for women living in the 26 states that plan to outlaw the practice in the advent that Roe is overturned. Particularly affected, of course, would be poor and working-class women living in those states who don’t have the means to travel for a procedure. Perhaps most troubling: Because Roe was decided on the principle that an individual’s private decisions belong to them and not the states, many see the potential repeal as a harbinger of things to come and worry about what other court-decided decisions could be overturned next. Marriage equality? Access to contraception? After all, those aren’t mentioned in the Constitution either.
The development has lit a cultural fire. People are angry; they view the potential loss of women’s reproductive rights as tantamount to a nation turning back the clock. Already, protests have broken out across the country (tellingly, within hours of the leak, police surrounded the Supreme Court Building with barricades). The draft opinion has also undermined our faith in the Court and has cast a pall of political discord over a supposedly non-partisan institution (keep in mind: the majority opinion goes against what Kavanaugh, Barrett and Gorsuch each said regarding Roe during their respective confirmation hearings).
Most interestingly, the news has set the stage for a seismic shift in our political landscape, has opened up a new political battlefield at a time when Trump-style politics remain the order of the day and during an election cycle that had all but guaranteed a GOP victory in the 2022 midterms (and arguably, the 2024 election). Our nation’s elected officials have now been called to mobilize a response and protect women’s fundamental right to choose, and an unintended consequence of all this is that the Democrats finally have a wedge issue to use at the ballot box. Arguably, this couldn’t have come at a better time for Biden, who currently commands a laughable 42 percent approval rating, according to FiveThirtyEight, putting him neck and neck with Trump for being the most unpopular President in recent history.
Complacency got us here. None of this would’ve happened if Clinton had won in 2016 and if Trump’s three appointed Justices had never made it to the bench. But an overwhelming majority of Americans support women’s right to abortion access (80 percent, according to Gallup), and nothing riles up apathetic voters like a potential infringement of our civil rights. Many of us foresaw the Democrats facing a bloodbath in November. Now, I’m not so sure.
Roe’s endangerment also signals a top issue that the private sector will inevitably be expected to take a stand on this year and beyond. Brands are all-too familiar with the polarized political environment in which they reside, and recognize that today’s consumer audiences are more conscious of social, political, and environmental causes, which influences their buying decisions. As a result, brands will have to be more focused than ever on navigating this ideological minefield and on the practice of communicating with purpose, and companies that continue to approach pressing social topics with the same look-the-other-way approach could be in for a rude awakening. This development may also drive a wedge between U.S. corporations—which have traditionally been bulwarks for conservative causes—and Republican states, ala Disney’s recent spat with Florida over the Sunshine State’s law on discussing gender identity issues in schools. This is one issue on which the private sector won’t be able to stay silent.