More From Politico on the Abortion Rights Story

From POLITICO Playbook with Ryan Lizza and Eugene Daniels:

IN HIS OWN WORDS: “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment.”

Thus begins Justice SAMUEL ALITO’s February draft opinion that would end the constitutional right to an abortion in America, obtained exclusively by POLITICO’s Josh Gerstein and Alexander Ward.

We knew this was coming. Ever since last December’s oral arguments in the Mississippi abortion case, it seemed likely that there was a majority on the court to overrule Roe and Casey.

But while not a surprise, it was still shocking to see Alito’s words in black and white. The draft opinion, if it holds, would be the culmination of half a century of legal conservatives organizing around the idea that Roe was wrongly decided and needed to be reversed.

They have, above all else, three people to thank:(1) President GEORGE W. BUSH, who appointed Alito; (2) then-Senate Majority Leader MITCH MCCONNELL, who blocked President BARACK OBAMA from filling a Supreme Court vacancy; and (3) President DONALD TRUMP, who appointed three conservative justices, all of whom seem prepared to back some version of the Alito opinion.

They can also thank two unusual features of the American system:(1) a Senate in which McConnell was able to gain control without Senate Republicans representing a majority of Americans, and (2) an Electoral College system in which both Bush and Trump became president despite losing the popular vote.

In his draft opinion, Alito anticipated a fierce political backlash coming, and offered a preemptive response: “We cannot allow our decisions to be affected by any extraneous influences, such as concern about the public’s reaction to our work.”

THE BREACH — For those who watched oral arguments and followed the case closely, more shocking than the substance of Alito’s draft opinion was the extraordinarily rare publication of the draft text. We would say this even if Josh and Alex weren’t our colleagues: this ranks as one of the biggest journalistic scoops of this generation.

THE ROOTS OF ROBERTS VS. ALITO — CNN last night provided additional confirmation that Chief Justice JOHN ROBERTS was unlikely to join Alito and the four other conservativesCLARENCE THOMAS, NEIL GORSUCH, BRETT KAVANAUGH and AMY CONEY BARRETT — on any final anti-Roe opinion.

The divide between the two Bush appointees goes back to their confirmation hearings, when they each tackled the question of Roe in different ways. In 2005, Roberts emphasized that Roe was “settled law.” The following year, Alito conspicuously noted that stare decisis, the legal term of art for respecting precedent, was not an “inexorable command.” At the time, it was noted that Alito was echoing former Chief Justice WILLIAM REHNQUIST’s use of the same phrase in his 1992 dissent in Casey, calling for the overturning of Roe.

Thirty years later, Alito, now leading a conservative majority, used the Rehnquist dissent as a blueprint. Adherence to stare decisis “is the norm but not an inexorable command,” he wrote in a key passage.

PRESSURE ON CONGRESS — Sen. BERNIE SANDERS (I-Vt.) was one of the first out of the gate with a demand that Democrats use their congressional majorities to codify Roe into law — and “end the filibuster” if necessary.

The only problem with that: there may not be 50 votes for it in the Senate.

  • Burgess Everett: “There is really no scenario where the 50-50 Senate gets rid of the filibuster for abortion legislation this year. [Sen. JOE] MANCHINis anti-abortion rights, and [Sens. SUSAN] COLLINS + [LISA] MURKOWSKI wouldn’t vote to change the Senate rules under a Democratic majority.”

ALL EYES ON COLLINS — The Supreme Court seems poised to do what Collins assured her abortion-rights supporting Maine constituents that it would never do when she voted to confirm Kavanaugh. Here she is in 2018:

  • Reporter: Why do you think Kavanaugh would not repeal or overturn Roe v. Wade?
  • Collins: “Because he has agreed that the concept of precedent is rooted in Article Ill of the Constitution. And he clearly reveres our Constitution. He also believes that it is not sufficient — since I asked him this directly — for five sitting judges to believe that an earlier decision was incorrectly decided.”

In his 98-page draft opinion, Alito blasted through each of those arguments about precedent. And Kavanaugh apparently agrees with him.

The Senate is in session, so expect Collins to be chased around by reporters all week questioning her judgment about what Kavanaugh would do on Roe, and whether it could change her view of going nuclear on the filibuster.

IS IT ONLY ABOUT ROE? — Since December’s oral arguments, Roe’s defenders have said that the legal logic behind dismantling Roe could easily apply to other Supreme Court opinions that rest on protecting “fundamental rights” that are not specifically enumerated in the Constitution, and specifically opinions more recent than Casey dealing with same-sex marriage, anti-sodomy laws and civil rights.

Alito takes pains to knock down this idea: “[T]o ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

That, of course, is rarely how it works. Successful legal arguments get borrowed and expanded, and the opinion-writer’s buried disclaimer gets forgotten.

Politically, this will be a potent rallying cry for Democrats: It won’t end with abortion. Next will be contraception and gay marriage. (AOC is already there.)

Reaction on the left:

  • Senate Majority Leader CHUCK SCHUMER and House Speaker NANCY PELOSI in a joint statement: “Every Republican Senator who supported Senator McConnell and voted for Trump Justices pretending that this day would never come will now have to explain themselves to the American people.”
  • Sen. PATTY MURRAY (D-Wash.): “If this is true, women will be forced to remain pregnant when they don’t want to be. Extreme politicians will control patients’ most personal decisions. And extreme Republicans will have eliminated a fundamental right an entire generation of women have known their whole lives.”

Reaction on the right:

  • Sen. MIKE LEE (R-Utah): “Deliberation and the maintenance of decorum and confidentiality are vital to the free operation of justices and the judicial system. To violate an understanding that has held for the entire modern history of the Court — seeking to place outside political pressure on the Court and the justices themselves — is dangerous, despicable and damaging.”
  • Rep. MARJORIE TAYLOR GREENE (R-Ga.): “This is the best news of our lifetime. … This is a great victory. This is a great victory for God.”
  • Sen. TED CRUZ (R-Texas): “This is nothing short of a massive victory for life and will save the lives of millions of innocent babies.”

Further reading:

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