On a Sleepless Night, Shifting Ground, and Losing a Constitutional Right in One Sentence

We hold that Roe and Casey must be overruled ~Justice Alito for the majority; draft opinion, Dobbs v. Jackson Women’s Health

The fight to save abortion rights was lost slowly, over a long time, and then all at once. ~Elie Mystal, Yes, the Theocrats on the Court Really Are Going to Overturn Roe v. Wade

“The permissibility of abortion, and the limitations upon it, are to be resolved like most questions in our democracy; by citizens trying to persuade one another and then voting.” ~Justice Alito for the same majority that refuses to protect voting rights and curb systematic voter suppression; draft opinion, Dobbs v. Jackson Women’s Health

I didn’t sleep well last night.

So I’m writing this in the wee hours, sitting at the dining room table, drinking coffee and watching the haze of the early morning emerge and take over where night left off.

Today – this morning – is strange, terrifying, territory.

The ground feels soft. Fragile.

My head feels similarly.

So forgive me for the somewhat stream-of-consciousness writing.

You’ve no doubt read and watched the coverage of the leaked Supreme Court [draft] opinion that – at least in its current draft form – explicitly overturns Roe v. Wade and finds there is no constitutional right to abortion.

Plenty of legal analysts have given their two cents about the opinion already, and many (like Elie Mystal, Dahlia Lithwick and Neal Katyal) are very good and knowledgable (you should follow them). Some other talking heads focus on the fact this is a draft opinion that was (gasp!) leaked. Please do not be distracted.

The leak is interesting.

The leak is not the story.

But the leak is easier to talk about than the story.

Because the actual story is one of a now-openly theocratic Supreme Court giving states the ability to control your body and decisions about it. It’s also about the Court’s rationale, which absolutely puts once-settled constitutional rights in play.

So there are a few things that I want to highlight, because they’re important and need to inform our actions and advocacy going forward.

First, I cannot overstate how damaging this opinion is to your constitutional rights, even if you do not have a uterus or the ability to get pregnant. While – in the draft opinion – the Court (by way of author Justice Alito) goes out of its way to say that its decision should not be seen to impact any other rights (like, for example, gay marriage or even the right to contraception) the reasoning of the opinion makes clear that any right that is not explicitly in the constitution is up for grabs. The new conservative majority is steadfastly “originalist,” and it flexes in this opinion.

The Court says that any right not explicitly enumerated in the constitution must be “deeply rooted in the nation’s history and tradition,” and “implicit in the concept of ordered liberty.”

If a constitutional right that has been in place and consistently affirmed for over 50 years, and upon which human lives quite literally depend, is not “deeply rooted,” then any other rights not explicitly stated in the constitution are absolutely up for grabs.

You saw this yourself in the Supreme Court hearings for Ketanji Brown Jackson, where for a moment Senators asked some bonkers questions regarding the settled nature of Griswold v. Connecticut – which established the right for married women to get contraception, even though that’s obviously not “enumerated” in the constitution. (Check out Senator Marsha Blackburn’s comments describing Griswold as “constitutionally unsound” in https://www.tennessean.com/story/news/politics/2022/03/21/marsha-blackburn-criticizes-1965-supreme-court-ruling-birth-control/7120236001/ And, in the actions below, I include a link to the Center for Reproductive Justice’s excellent article laying out the various rights that are put at risk if/when Roe falls. While it was obviously written before last night’s draft opinion was published, its analysis holds.)

Even if it gets softened before the final version goes to press, we are now given a window into the reasoning of the Court, and it’s chilling … and will open the doors to litigation to end a whole host of other “unenumerated” rights (most notably gay marriage and the right of same-sex couples to be intimate, both of which Alito refers to harshly in the opinion).

All of this ishould move you to action – again, regardless of whether you can get pregnant.

Second, the Court is trying to turn this into a “states rights” issue, hiding behind the intellectual argument that people can choose their state representatives via voting, and so it is truly an issue “for the people” to decide. Poppycock. Simultaneously, this same Court has refused to strike down extreme, egregious state partisan gerrymanders – where the politicians in these state legislatures choose their voters. The Court has also refused to protect voting rights – a right that is, in fact, “enumerated” in the constitution.

In other words, don’t fall for this “states rights” argument and be satisfied that it’s either intellectually consistent with their prior precedent or satisfying. It’s neither.

And third, there is in fact something we can do. Lots, actually.

You are not helpless unless you decide to be.

We are now at a point when foundational constitutional rights (like voting and privacy) are under direct attack. Those rights are the bedrock upon which everything else sits. They must be the priority.

I am not saying I do not care about anything else.

But we have allowed inter-party arguments about all sorts of important policy issues to drive wedges among and between us.

No more.

We must be united about the importance of democracy and constitutional rights.

So, here in the dark with a cup of coffee and a head swimming with the dangers ahead, here are my priorities.

First. Expand the Senate majority. By a lot. We can and must codify Roe. We can and must protect voting rights. We need more Democratic Senators to do those things. Yes, you can be good and mad that one or two of our 50 Democratic Senators won’t all support these things. But be more mad that all 50 Republican Senators refuse to even consider it, and then help get 5 more Democrats on our side of the aisle so we can get some things done.

Helpfully, we have elections in November, so we can get started on this now.

Second. Keep the House. Same reasoning as above.

Third. Fight in every district, in every state. State legislatures are more important today than they were yesterday, and they were darn important yesterday too.

And by the way – I don’t care if you think a district is a long shot. Fight there, too. We spent $150 million opposing Mitch McConnell in 2018, so I don’t buy this whole “Democrats care most about efficiency and won’t fund lost causes” argument. What we care about is fighting intensely for something we believe in.

Democracy and constitutional rights are some things that we all intensely believe in, right? Okay, then – we have to get into these rural red districts and pull back the curtain on the crazy that the Republicans have unleashed. And we need to fight like the cornered cats that we are – with everything we’ve got. I give you some ideas below, but will give even more creative and specific ideas in the weeks ahead. Promise.

This morning I feel similarly to how I felt in the days after Donald Trump was elected. A seismic shift had occurred.

But friend – just as we responded in unison after Trump was elected, we can respond now.

What we do now matters.

What you do now matters.

Let’s get to work.

Actions for the Week of May 3, 2022

Rally Today (Tuesday, May 3) & Upcoming Mass Mobilizations

Women’s March is asking our supporters to show up for abortion rights today, Tuesday, May 3 at 5pm local time at your community courthouse, federal building, or town square to demand elected officials take action

Bring your families, your signs, your stories, your heart, and your commitment to save Roe and access to safe and legal abortion for all who need it.

You can sign their pledge to rally here: https://act.womensmarch.com/sign/roe-rally-pledge/?source=em20220503&t=2&akid=12793%2E2014008%2EXd5QIS

Over the next few days, a coordinated effort will be going on with Indivisible, Planned Parenthood, NARAL, MoveOn, UltraViolet, and others to plan mass mobilizations and other actions. Indivisible will share those plans via email and text message. (If you’re not on our rapid response text team, text INDIVISIBLE to 59798, and they’ll set you up.)

Call Your Senators and Demand Codification of Roe

The Women’s Health Protection Act passed in the House. In February, it failed to overcome the filibuster in the Senate (unsurprisingly). But Senators did vote on the issue. https://reproductiverights.org/womens-health-protection-act-in-historic-senate-vote/

You can see who in both the House and Senate supported it at the Center for Reproductive Justice here: https://actforwomen.org/the-womens-health-protection-act/

You can also see the cosponsors at Congress.gov here: https://www.congress.gov/bill/117th-congress/senate-bill/1975/cosponsors?r=3&s=1&q=%7B%22search%22%3A%5B%22women%27s+health+protection+act%22%2C%22women%27s%22%2C%22health%22%2C%22protection%22%2C%22act%22%5D%7D

Now, armed with that information, go get your phone and – if you have a Democratic Senator who voted for the bill, call them and – after thanking them – demand to know what they are doing right this very second to protect this constitutional right.

Remind them that the filibuster is a Senate rule – and a Senate rule should not override both voting rights and healthcare.

Bonus action for those of you with Senators who “relied” upon the lies made by the new justices that they saw Roe as settled precedent (looking at you, Susan Collins and Lisa Murkowski): call them and demand to know what they are doing to protect this constitutional right.

Eye Toward Midterms: Voting

The 2022 midterms were always going to be critical, but now they are supercharged. Both state and federal elections are going to be off-the-charts important.

Because voting rights have been chipped away, this week let’s focus our attention on voter registration.

Field Team 6 has been registering voters in a variety of ways for years now. I want you to go to their calendar of events and find one thing – just one thing! – that you can take part in. Postcarding, textbanking, phone banks – there are so many ways to help register voters from anywhere in the country. Make this a priority: https://www.fieldteam6.org/actions

Donation Options

I’m glad to see so many groups sharing where people can donate to help people obtain abortions. This is a great document that shares funds for all 50 states: https://docs.google.com/document/d/1T-aDTsZXnKhMcrDmtcD35aWs00gw5piocDhaFy5LKDY/preview?pru=AAABgK5NPmc*Y3Tz2k6VFSRTaQnsiGvwdg

There are also ways to support the politicians who are fighting like crazy to keep the crazy at bay in our state legislatures. In Missouri in particular, we have It Starts Today’s Pro Choice program, that crowdsources support for Democratic nominees for state legislature that have been endorsed by Planned Parenthood or NARAL. Seriously, if you’re in Missouri and want to support *all* the nominees who are fighting the good fight directly, this is a great option. The funds do not go to “support” the nominees with independent expenditures or the like. The funds literally go to the nominees. Go here: https://itstarts.today/the-missouri-project/pro-choice/

(Full disclosure that it’s one of my projects at It Starts Today – which means I feel passionately about it and believe it works.)

Read Up on Other Liberties at Risk

As noted above, there are a lot of “unenumerated” constitutional liberties that are put at risk with this opinion. Regardless of whether you hold a legal degree, you can read up on what those liberties are and how they might be impacted in this very helpful paper from the Center for Reproductive Rights. (Click this link to the PDF at reproductiverights.org.)

Another pretty essential resource on reproductive rights is the Guttmacher Institute, which has a wealth of policy analysis. In particular, see https://www.guttmacher.org/abortion-rights-supreme-court


P.S.: Why don’t you make someone’s day and send this pep talk to a friend or two? I bet they need it.

If you’d like to sign up to get this pep talk and action list in your in-box each week, you can do that here. Welcome, friend!

P.P.S.: If you want to help support this work you can do so via Patreon at
https://www.patreon.com/smalldeedsdone or via paypal at https://www.paypal.me/smalldeeds
My deepest gratitude in advance.

Thank you for reading. Thank you for writing. I read and respond to every email! We’re in this together. Don’t you forget it.

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