Seated from left: Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor, standing from left: Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett.
A bombshell draft majority opinion circulated among the justices in Dobbs v. Jackson Women’s Health Organization was leaked to Politico on Monday night. The authentic draft document, shown to be authored by Supreme Court Justice Samuel Alito, is not a final decision, but it shows what we can expect if a majority of the Supreme Court justices, indeed, completely overrule landmark abortion cases Roe v. Wade and Planned Parenthood v. Casey.
We have analyzed the draft decision and its potential legal impact below.
What are the rules governing abortion laws under Roe v. Wade and Planned Parenthood v. Casey?
In 1973, Roe v. Wade held that the right to abortion is a fundamental right, grounded in privacy and found within the “penumbra” of rights created by the First Amendment of the Constitution (and guaranteed by the states through the application of the Fourteenth Amendment). Because the right to abortion was held to be “fundamental,” it triggered the highest level of judicial scrutiny, known as “strict scrutiny.” This meant that state abortion laws could only survive if they were “necessary to achieve a compelling state interest.”
Roe also provided a framework for applying that scrutiny, which allowed different levels of regulation at each of the three trimesters of pregnancy.
Nineteen years later in 1992, Planned Parenthood v. Casey changed the legal framework. Casey (which was a bitterly-divided 5-4 decision) said that the right to an abortion is actually a liberty (not privacy) interest. It also changed the trimester framework to one in which states could not permissibly place an “undue burden” on a woman’s right to have an abortion.
What would this draft opinion in Dobbs v. Jackson Women’s Health Organization do?
It would wipe away both Roe and Casey as if they never happened. Most importantly, the Dobbs decision would allow state legislatures far more authority to enact anti-abortion legislation, and to test legislation only at the lowest of constitutional standards.
What would this Dobbs opinion not do?
It would not outlaw abortion on a federal level. In fact, it takes no position on what kinds of abortion regulations are moral, useful, or legal. Rather, it returns the jurisdiction to legislate abortion entirely to the states, and gives each individual state nearly unfettered authority to legislate as it pleases.
What does the draft opinion actually say?
Over the course of 68 pages, Justice Alito rails against the wrongheadedness of Roe and Casey right from the start. His basic gripes are that 1) Roe‘s logic was not based in constitutional or any other legal history; and 2) Roe and Casey never really settled the abortion debate and have continued to cause legal chaos since they were handed down (see: discussions on super-precedent).
The following is an in-depth discussion of the legal reasoning in the draft opinion.
Alito: the Roe and Casey Courts misused history
Under Roe and Casey, the right to have an abortion was implicitly read into the Fourteenth Amendment’s Due Process Clause, and was crowned a “fundamental right” deserving of the highest level of Constitutional scrutiny. However, Alito reasons that only rights that are “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty” are deserving of the “fundamental right” label.
A historical right to abortion
Alito recaps Roe’s ill-fated origin, recounting that the Supreme Court essentially created the right to abortion out of thin air despite the topic having been an entirely state-level issue for 185 years. Alito characterizes this judicial misstep as a severe squashing of the legislative process at the state level.
According to the justice, because neither abortion nor even “privacy” are ever mentioned in the Constitution, it was just too much of a stretch for the Roe Court to have based its decision on those rights. As to Casey’s holding that the right to an abortion can be found within the general concept of “liberty,” Alito writes that he is similarly unconvinced.
In the draft opinion, Alito devotes several pages to discussing the extensive history of abortion constituting a criminal offense in both England and the immediate post-colonial United States. He points out that, in fact, at the time the Fourteenth Amendment was ratified, three-quarters of the states (then, 28 out of 37) made abortion a crime if it occurred after “quickening” (the first time a fetus can be felt moving in the womb).
“Ordered liberty”
Alito also dispensed with the idea that a right to abortion is necessary to maintain “ordered liberty.” He says that by stark contrast to an imagined right to abortion, the right “to keep and bear arms” is a far better example of what would fit the bill. Abortion, says Alito, is more like assisted-suicide — which was specifically found not to be a “right” by the Court in past cases.
Rather, reasoned Alito, abortion is a matter for elected representatives to handle. The justice emphasizes the diverse views held by Americans on the subject of abortion, and writes that “ordered liberty” does not prevent different groups of people from having different abortion laws. He goes on to warn that an attempt to justify abortion as key to personal autonomy could open the door for things like illegal drug use and prostitution to also be considered “fundamental rights.”
Pragmatic concerns for women
In briefs and oral arguments, proponents of Roe cited the potential for pregnant women to face a host of disadvantages as a direct result of carrying an unwanted pregnancy. In particular, they highlighted the burden of medical costs and workplace discrimination. Alito takes time in his opinion to acknowledge these arguments. Alito fully dispenses with the practical arguments, and points to society’s “changing attitudes” about pregnancy, anti-discrimination and safe-haven laws, and insurance regulations (ironically citing the Affordable Care Act, as my Law&Crime colleague Marisa Sarnoff discusses here at length) that require coverage for prenatal care.
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What about stare decisis?
Whenever a court overturns past precedent, it must justify its decision to abandon stare decisis — the concept that the judiciary is bound by past precedent. Stare decisis is a tremendous hurdle to clear, and Justice Alito is clear to make a detailed argument for the majority’s decision to do so in this case.
Alito notes that while stare decisis is an important concept, that “when one of our constitutional decisions goes astray, the country is usually stuck with the bad decision unless we correct our own mistake.” He then points to decisions such as Brown v. Board of Education (which overruled Plessy v. Ferguson‘s separate-but-equal rule), West Coast Hotel v. Parrish (which overruled a case that struck down minimum wage laws for women), and West Virginia Board of Ed. v. Barnette (overruling a precedent that upheld compulsory flag salutes by public school children), among others.
In a lengthy footnote, Alito listed a number of high-profile cases that relied on overruling a disfavored precedent, including Obergefell v. Hodges (which guaranteed the right to same-sex marriage), Lawrence v. Texas (which struck down the criminalization of consensual same-sex intimacy in one’s home), and Batson v. Kentucky (which ruled that the Equal Protection Clause guarantees that the state will not exclude members of a defendant’s race in a criminal jury).
In a comparison that is sure to be highly controversial, Alito compares Roe to Plessy. He writes, “Roe was also egregiously wrong and deeply damaging,” just as Plessy was wrong. Deriding the Roe decision for being based on “irrelevant” history and fraught with weaknesses that are “well known,” Alito writes that its “elaborate scheme” was nothing more than “the Court’s own brainchild.” Alito acknowledges that the case may have been based on other important individual rights cases (such as Loving v. Virginia, which upheld the right to marry a person of a different race, Skinner v. Oklahoma, which formalized the right to be protected from forced sterilization, and Griswold v, Connecticut and Eisenstadt v. Baird, which upheld the right to obtain contraceptives), but argues that these cases should not control, because none of them involved “a potential human life.”
Roe and Casey are not “workable.”
One of Alito’s central tenets is that the framework created by Roe and Casey are simply too amorphous to apply. He is critical of Roe’s viability standard, and argues that viability is a problematically “arbitrary” line unique to each pregnancy.
Two decades after Roe, Casey reworked the trimester system, replacing it with one that banned “undue burdens” on the right to have an abortion. Alito writes that the Casey standard is similarly unworkable and only compounded the problems created by Roe. Quoting the late Justice Antonin Scalia’s dissent in Casey, Alito writes that “determining whether a burden is ‘due’ or ‘undue’ is ‘inherently standardless’.” Alito noted that former Chief Justice William Rehnquist predicted back when Casey was written that it created a standard that was “not built to last.”
There is no reliance on Roe and Casey that justifies keeping their rules in place.
A major argument put forth to SCOTUS in the Dobbs case was that women have relied on the Roe and Casey precedents for decades, and that upending years of abortion jurisprudence would harm them. Alito is unwilling to even weigh in on the idea of reliance. He writes that the Court is simply not equipped to assess whether women in particular or society in general have relied on Roe and Casey in a way that would weigh against overturning those holdings. Rather, he writes, these concerns are for state legislatures to sort out.
In the draft opinion, Alito says, “our decision returns the issue of abortion to those legislative bodies, and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislatures, voting, and running for office.” As if to underscore the likelihood of success, Alito adds, “the percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so.”
What would a post-Dobbs future hold?
The full impact of the Court’s decision in Dobbs is unclear, even if the draft opinion is ultimately released by the Court as its final ruling. Alito devotes several paragraphs to telling readers that abortion is a “unique” issue, and one that should not have immediate impact on other individual rights issues. He writes:
And to 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.
“We do not pretend to know how our political system or society will react to today’s decision,” Alito adds, “and even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision.”
The impact on abortion regulations
If the draft opinion becomes finalized, state abortion regulations will be subject only to “rational basis review,” the lowest level of constitutional scrutiny. This means that a state may regulate abortion so long as the regulation in question is rationally-related to a legitimate state interest. Abortion regulations will be approached by courts with a “strong presumption of validity,” and may rarely struck down on constitutional grounds.
Of course, state legislatures will be the ultimate determiner of whether and which abortions will be allowed. In more liberal states that already allow unrestricted access to many abortions, the decision is not likely to have immediate impact. However, in states such as Oklahoma, Texas, and Louisiana, which have highly-restrictive abortion laws ready to go into effect, the Dobbs ruling would almost certainly allow those statutes to take full effect immediately.
What about other individual rights?
Some have speculated that the draft ruling in Dobbs indicates SCOTUS’s willingness to upend other individual rights precedents such as those underscoring the right to same-sex marriage or the ban on criminalizing same-sex intimacy. Certainly, without Roe and Casey, the overall landscape of constitutionally-protected individual rights looks different. Further, the Court’s willingness to overturn a decades-old precedent on a hotly-contested issue is a signal that it might be willing to do the same in other contexts.
However, the draft says that it intends the ruling to apply only to abortion, and cites important reasons for the narrow application. Moreover — and likely more importantly — the Court as currently composed has not been keen to limit legal protections for LGBTQ+ Americans. Conservative Justice Neil Gorsuch penned the 2020 6-3 majority opinion in Bostock v. Clayton, which said, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
Will there be other fallout from the leak?
Absolutely. A SCOTUS leak on the level of the Dobbs draft opinion is a monumental occurrence. Chief Justice John Roberts has already issued a statement ordering the Marshal of the Court to investigate the source of the leak. Meanwhile, top Republicans are calling for a criminal investigation.
[image via Erin Schaff/pool/AFP via Getty Images]
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