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Sensemaker: Alito aftershocks

Sensemaker: Alito aftershocks

What just happened

Long stories short

  • Russian rockets targeting Ukraine’s rail network hit the mountainous southwest for the first time in the war. 
  • The likely shortlist of candidates for the UK’s next Met police commissioner was left all white and male after Lynne Owens, a former head of the National Crime Agency, said she wouldn’t be applying.
  • Jacky Hunt-Broersma, a cancer survivor running on a prosthetic leg, completed a record 104 marathons in 104 days.

Alito aftershocks

On the face of it, one 72 year-old white male judge has reached for his thesaurus and his legal history books to tear up America’s federal abortion law in the teeth of opposition from a large majority of its people. 

In reality a strategy quarter of a century in the making to pack the Supreme Court with conservative justices and lay siege to it with lawsuits that cannot be resolved elsewhere has paid off handsomely for the religious right. 

Judge Samuel Alito’s leaked opinion in the case of Dobbs v Jackson Women’s Health Organization is only a draft, but it’s highly unlikely to change significantly between now and publication, probably in July. That being so it almost certainly dooms the federal legal protection of women’s access to abortion enshrined in Roe v Wade since 1973.

As it stands the Alito opinion would 

  • trigger sweeping abortion bans in 13 states that have already passed laws awaiting this ruling;
  • lead to similar bans or severely restricted abortion access in ten more states;
  • disproportionately impact Hispanics and Blacks – who on a per capita basis have roughly twice and four times as many abortions as Whites, respectively – and those living in southeastern and midwestern states;
  • upend this year’s midterm elections, in which Democrats now hope to harness a roughly 2-1 voter split in favour of keeping Roe v Wade in some form, to make abortion rights a rallying cry in state, gubernatorial and congressional races;
  • leave America with the most restricted access to abortion of any big rich country; and 
  • deepen the divide in an already intensely polarised country between liberal urban centres that recognise women’s reproductive rights and large swathes of suburban and rural America where abortion services in virtually all circumstances will become illegal and women may have to travel hundreds of miles to end pregnancies they don’t want.

Both sides have seen the end of Roe v Wade coming since the Supreme Court heard oral arguments in the Dobbs case, referred from Mississippi, last December. But the pro-choice movement is reeling even so. Instead of offering a measured critique or any room for compromise, the Alito opinion, which Politico says has the support of at least four other justices, tears up Roe v Wade by its roots.

  • It calls the 1973 ruling by Judge Harry Blackmun (a Nixon appointee) “egregiously wrong from the start”.
  • It likens Roe v Wade’s recommendations to “rules much like those that might be found in a statute enacted by a legislature”, and duly hands responsibility for America’s abortion laws back to state assemblies.
  • It cites as supporting evidence the fact that when Congress passed the 14th Amendment to the US Constitution, which features in Roe v Wade as a key privacy protection, three-quarters of US states had full abortion bans in place – even though the year was 1868. 
  • And it asserts that whatever replaces Roe v Wade should be “rooted in our Nation’s history and tradition” – rather than any notion of progress.

As Professor Mary Ziegler writes in the Atlantic, the court did not have to take this case, nor reach a verdict so quickly. Its majority opinion “rehabilitates the 19th-century physicians who sought to criminalise abortion” and shows little sign of soul-searching: the conservative majority, locked in under Trump with justices Brett Kavanagh and Amy Coney Barrett, has shown “it is not going to sit around and wait”.

By the numbers

54 – percentage share of Americans who want Roe v Wade upheld, according to a new poll by the WaPo

28 – percentage who want it overturned

6 – conservatives on the Supreme Court when Chief Justice John Roberts is included, meaning even if he dissented the Alito opinion would be upheld

23 – states with trigger laws or severe existing restrictions on abortion access in place

16 – states with laws protecting abortion rights in place or planned

387 – percentage increase in distance to the nearest abortion clinic for the average Mississippi woman aged 15-44 under a post-Roe scenario, according to the Guttmacher Institute (from 78 to 380 miles)

11 million – people for whom North Carolina will become the closest abortion provide under such a scenario, up from 230,000 (see graphic).

Is it over? In the Supreme Court, pretty much. The leaking of the Alito opinion makes it less likely that it will change rather than more, because no justice wants to be seen to be swayed by public opinion.

Is there a pro-choice alternative to Roe v Wade? Yes. Congress could pass a federal law enshrining the same protections.

Is that likely? No. It would require a filibuster-proof Senate majority and while Republican Senators Susan Collins and Lisa Murkowski have expressed anger with Justices Kavanagh and Coney Barrett for endorsing Alito, they would not side with Democrats in abolishing the filibuster – and the Democrats don’t have the votes to abolish it on their own. 

What happens next? Washington takes the pulse of the nation before the midterms. The opinion states explicitly that it would not create a precedent for more rulings undermining access to IVF and contraception hitherto protected by the 14th Amendment, but that is what progressives fear and will campaign on. Expect same-sex marriage to return to hustings for the same reason. 

The leak. Each side blames the other. An indignant Justice Roberts has ordered an investigation. At first blush it might seem to serve progressives more, but Yale Law School’s Professor Amy Kapcynski’s argues persuasively that it will prove to be a conservative leak to head off any attempt by Roberts to soften the tone or impact of the final version.

As to that tone, John Harris of Politico, which had the scoop, says Alito’s language “vibrates with contempt”, putting him in mind of “a relative who gets carried away at Thanksgiving dinner”. By the standards of most of the past 250 years the US Supreme Court has got carried away, but there is little sign it will rein itself in on Roe v Wade.


UK inequality
City pay in the UK has grown more than twice as fast as the national average since 2019, and is growing faster than at any time since the 2008 crash. A return of big bonuses means average earnings in finance and insurance grew by 31 per cent compared with an average of 14 per cent for other sectors, according to new research by the Institute for Fiscal Studies. Income inequality was narrowing before the pandemic but is widening now. The Guardian notes this may insulate bankers from the cost of living, as if they weren’t insulated already. It doesn’t note how resilient the City is proving to the Brexit shocks affecting other parts of the economy. 


“Embarrassed to be British”
Some interesting numbers and word choices emerge from a new survey of attitudes to Britain and Europe among 1,328 British nationals living in the EU. Eighty per cent said Brexit and the British government’s handling of Covid had strongly affected their views of the UK, and Lancaster University’s Professor Michaela Benson said specific responses included words like “shitshow” and “shambolic”. In fairness to Brexiters the jury’s still technically out on any link between Brexit and the UK Covid response (although the verdict could still be damning, given the power of the former to distract civil servants’ attention from the latter). But there’s little sign in the data of that fierce attachment to the old country traditionally seen among expats. Three-quarters of those polled felt very or extremely emotionally attached to the EU, compared with 30 to the UK. 


NFT sales slump
Sales of non-fungible tokens are falling so fast that cliff or even bubble metaphors may be in order. For some people this may bring a sense of relief that there is no longer any need to understand what NFTs are, although like cryptocurrencies they could bounce back. For now, the WSJ reports, sales are down 92 per cent since last September and the number of active NFT “wallets” has fallen almost as steeply – by 88 per cent since November. An NFT, Forbes says, is a digital asset that represents a real-world object. But it stretches the definition of “real-world object” to include, for example, Jack Dorsey’s first-ever tweet. An NFT of that tweet, which is a piece of blockchain code saying the buyer owns it, sold last year for $2.9 million but didn’t get any bids above $14,000 when put up for resale recently. There’s plenty of supply, but less and less demand.

The 100-year life health, education AND GOVERNMENT

Sinn Fein
Local elections across the UK will be held tomorrow, and those in Northern Ireland could bring significant change. Polling indicates that for the first time Sinn Fein will become the biggest party in Stormont. How did the republican party get here? A campaign led by Mary Lou McDonald and described as “fluffy” and “soft” has avoided controversy and moved the debate away from the party’s IRA roots. It has focused instead on the cost of living crisis and unionists’ failures in handling the Northern Ireland Protocol that was supposed to smooth the province’s departure from the EU. There has not been much discussion of a border poll (on whether to unite the island of Ireland), but that doesn’t mean a border poll won’t happen. At her Belfast manifesto launch, McDonald pledged to set a date, albeit with a vague timeline. Smaller centrist parties and accusations that the IRA still pulls Sinn Fein’s strings could eat into its vote share, but if it does win and the DUP refuses to share power as the minority, that could leave Stormont dormant. 

Our planet CLIMATE AND geopolitics

Chinese renewables
Even as it lunges back to coal to fill a yawning energy supply gap, China has added a remarkable 25.4 gigawatts of renewable capacity in the first quarter of this year, bringing its total renewable capacity to 1,088 GW. For perspective, 1,088 GW is more than 50 times the projected output of Australia’s Sun Cable project, which would be the world’s largest single solar power plant but hasn’t yet been built. It’s roughly three times the total US renewable capacity, and 20 times the UK’s. A translation of this report from China Electric Power News may be available, but we are grateful as ever to Carbon Brief for its summary. 

Thanks for reading. Please share this around and tell us what we’ve missed. News tips and story ideas are welcome. Email them to sensemaker@tortoisemedia.com.

Giles Whittell

With additional reporting by Phoebe Davis. Graphic by Katie Riley.

Photographs Getty Images

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