On May 2, 2022, the news outlet Politico released a confidential draft Supreme Court majority opinion from February 2022 in the pending case of Dobbs v. Jackson Women’s Health (JWHO).
On May 3, Chief Justice John Roberts confirmed that the draft is authentic and launched an investigation into the source of the leak. The draft majority opinion, were it to become law, is devastating. Penned by Justice Samuel Alito, the opinion proposes to overturn Roe v. Wade (1973). It would roll back 49 years of Supreme Court precedents on the right to bodily autonomy, specifically the right to abortion.
It is important to note that Politico leaked a draft majority opinion. Only the nine justices and their law clerks know how close this opinion is to what the Supreme Court may release in the next few months. Also unknown is whether there are draft concurrences where other conservative justices agree with the majority’s opinion, or (and it seems likely) one or more powerful dissents coming from one or more progressive justices.
The case concerns Mississippi’s request to uphold a 15-week abortion ban (with exceptions for medical emergencies and serious fetal abnormalities) enacted by the state in 2018. However, the decision would affect all state abortion laws. The abortion provider JHWO initially sued Mississippi officials in federal district court. JWHO argued that the state’s ban on abortion violated the constitutional right to abortion as established by Roe and reaffirmed in the 1992 Supreme Court case of Planned Parenthood v. Casey (Casey upheld Roe but with a new constitutional test that allowed more restrictive state laws.) The lower court granted summary judgment for JWHO, enjoining enforcement of the 15-week ban. The Fifth Circuit Court of Appeals upheld the lower court’s decision. In 2021, the Supreme Court took up the case and heard oral arguments on December 1, 2021, on whether “all pre-viability prohibitions on elective abortions are unconstitutional.”
In the May 2 leaked draft opinion, a majority of justices – meaning at least five of the nine – propose to overturn nearly 50 years of precedent of a fundamental constitutional right to abortion. Alito’s draft expressly states that the word abortion is not found in the U.S. Constitution and fails to meet the Fourteenth Amendment’s fundamental right test, therefore a right to it does not exist. The opinion analyzes the line of reasoning set by Roe and Casey, evaluates the standard of incorporated constitutional rights, and looks to the previous precedent to evaluate the right to obtain an abortion – but it is all aimed at the political end goal of overturning a Supreme Court decision on which so many of us have relied for five decades.
Roe affirmed a right to abortion under the Fourteenth Amendment’s Liberty protections, under a right to privacy. These protections provided substantive and procedural rights at the state and federal levels through the Due Process Clause of the Fourteenth Amendment. The Roe Court analyzed if the right to abortion was “deeply rooted in the Nation’s history and tradition” and if it was essential to our Nation’s “scheme of ordered Liberty.” In Roe, the Supreme Court answered that question, Yes.
Completely undermining Roe, Alito re-answers that settled question, No. He writes that abortion is not rooted in our Nation’s history and tradition, completely ignoring the past 49 years. Instead, he reaches back to the last century, pre-Roe, to cite antiquated laws that criminalized abortion, all of which were passed by men prior to women obtaining the right to vote. Alito dismisses Roe and Casey’s arguments that abortion falls within a historical right to privacy. He says there is a difference between an abortion case, where the government has a state interest in the fetus (not that he uses that term), and cases that rely, in part or in whole, on Roe and Casey. These include cases where the Supreme Court held that people have the right to marry a person of the same sex (Obergefell v. Hodges, 2015); the right to engage in consensual lovemaking (Lawrence v. Texas, 2003); the right to marry a person of a different race (Loving v. Virginia, 1967); the right to procreate and not be sterilized by the state (Skinner v. Oklahoma, 1942); and the right to contraceptives (Kisenstadt v. Baird, 1972) (Griswold v. Connecticut, 1965).
Second, Alito argues that Roe and Casey do not provide evidence that abortion is essential to our nation’s “scheme of ordered Liberty.” Alito claims that the Court has been reluctant to define liberty for the masses, even though his draft opinion would, as a practical resulting matter, curtail liberty for women (and other pregnant people) as most understand it. Casey defined liberty as the freedom to make “intimate and personal choices…central to personal dignity and autonomy,” and “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Though the phrase “ordered Liberty” appears nowhere in the Constitution, Alito counters Casey by arguing that while people may see the right to obtain an abortion as liberty, it does not qualify as “ordered liberty.” Alito proposes to return broad powers to states to enact harmful abortion bans, saying that subgroups and individuals in our society continue to disagree on how to balance competing interests. Conveniently, he ignores the fact that around 60% of Americans disagree with laws to restrict abortion all or some of the time.
Underpinning any constitutional case is the level of review the Court applies. Fundamental rights incorporated by the Fourteenth Amendment typically receive the highest level of protection, known as strict scrutiny. In most federal court constitutional cases, issues impacting women and LGBTQ people receive, at most, intermediate scrutiny – which is a mid-tier level of review. Because Alito finds no constitutional basis for abortion, he applies the lowest possible level of constitutional review, rational basis review, effectively causing his conclusion.
Alito justifies overturning Roe and Casey using five factors. His analysis argues abortion precedents have a weak constitutional basis, show the court acting as a legislature, are unable to be applied consistently, and distort other legal doctrines. Alito’s most egregious argument is his final one. Ignoring the reality of people’s lives, he deliberately minimizes the effect of overturning Roe and Casey. Dozens of states with conservative legislatures are ready to launch strict and harmful abortion bans.
If issued in June, Alito’s draft decision to overturn Roe and Casey would allow any state to pass harmful abortion restrictions by naming one or more legitimate state interests and showing only a rational connection to those interests. This decision would be a major legal/political victory for conservative political extremists, who have been working steadily for decades, and with success, to restrict women and other pregnant people’s rights and access to abortion. Finally, if this draft becomes the Supreme Court’s decision, the harshest impacts will fall on Black and Brown women and pregnant people, women and pregnant people living in poverty, among others.