First draft of history: What overturning Roe could mean for US

It’s just a draft, and may be different in its final form. But the leaked majority opinion suggesting the Supreme Court is on the verge of overturning Roe v. Wade could herald a sweeping change in American law and domestic policy that would return the nation to an America not seen in 50 years, with abortion rights determined by individual states.

It would be an America the Republican Party has wished and long planned for, with a long-term strategy of shaping the nation’s highest court by nominating and confirming reliable conservative justices. It would be a world Democrats have feared and seen coming, as red states passed laws testing the limits of Roe protections as the Supreme Court bench tilted right.

It would also be a world full of difficult, open questions dealing with perhaps the hottest of U.S. hot-button political issues. Will the battle over abortion become more intense, or cool down? How would Roe’s demise affect the midterm elections, and 2024? Will either party be able to pass national legislation codifying its abortion beliefs?

Perhaps most importantly, would overturning Roe’s protection of abortion mean that other personal rights guaranteed by the federal government but not explicitly mentioned in the Constitution – such as same-sex marriage, access to contraception, even interracial marriage – are on shaky legal ground as well?

These questions are difficult in part because the situation is so unprecedented. 

“It’s really hard to think of a situation where the court created a landmark constitutional right and then changed its mind,” says Eric Segall, a professor of law at Georgia State University in Atlanta.

The draft opinion was leaked to Politico and published Monday evening. On Tuesday the Supreme Court confirmed that the draft, dated Feb. 10, is authentic, but added in a statement that “it does not represent a decision by the court or the final position of any member on the issues in the case.”

Source of outrage: The leak or the opinion?

Many Republicans focused on the leak of a Supreme Court work in progress, saying it was outrageous and calling for the leaker to be found and prosecuted. Chief Justice John Roberts announced Tuesday that he has asked the marshal of the court to open an investigation into the source of the leak.

“The Chief Justice must get to the bottom of it, and the Department of Justice must pursue criminal charges if applicable,” said Senate Minority Leader Mitch McConnell of Kentucky in a statement Tuesday.

Many Democrats decried the leak, but focused their ire on the draft’s conclusion that Roe must be overturned.

Such a move “would be an abomination, one of the worst, most damaging decisions in modern history,” said Senate Majority Leader Chuck Schumer of New York in a speech on the Senate floor.

Meanwhile, the leaker’s motive remained unknown. It is possible that they were a Democrat who wanted to alert the nation to an upcoming judicial earthquake. But it is also possible they were a conservative who wanted to make it harder for any of the justices in the majority to change their minds, lest they be known as the right-leaning judge who saved Roe.

It’s possible that the leak will create an internal level of distrust in the court that might not have previously existed, says Kimberly Mutcherson, a professor of law at Rutgers in Newark, New Jersey.

“If nothing else, what it suggests to us is that the idea of the court as a sacred body and a sacred institution has been shaken,” says Professor Mutcherson.

The case at issue in the draft decision, Dobbs v. Jackson, stems from a challenge to a Mississippi law that limits abortion rights at 15 weeks.

“We hold that Roe and Casey must be overruled”

Written by Justice Samuel Alito, the draft decision gives no indication of which other justices are inclined to join the opinion, as is customary for drafts. Politico reported that in the conference held after the court heard oral argument, Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett all voted with Justice Alito. As of this week, that alignment had not changed, according to Politico.

The 98-page draft represents a full-throated skewering of the court’s five decades of abortion jurisprudence, most notably 1973’s Roe, which established a constitutional right to abortion, and 1992’s Planned Parenthood v. Casey, which upheld Roe’s central holding.

“We hold that Roe and Casey must be overruled,” writes Justice Alito in the draft, which makes no exceptions for rape or incest. “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.”

Such a reversal of current law would bypass stare decisis – a doctrine holding that the court should follow a historical precedent when ruling on cases with similar scenarios and facts. It would also be the first time in modern history that the court has overturned an individual right.

Pushing back against the argument that the right to abortion is “deeply rooted” in the country’s history and tradition, Justice Alito describes the claim that abortion wasn’t a crime under common law as “plainly incorrect.” The opinion’s appendix lists some U.S. state laws criminalizing abortion dating back to 1825.

The draft opinion also challenges the foundational constitutional basis for the right to abortion: the due process clause of the 14th Amendment. (No state shall “deprive any person of life, liberty, or property, without due process of law.”)

For decades the Supreme Court has read the due process clause to protect a variety of rights that are “unenumerated” – unmentioned in the Constitution’s text – but still “substantive.”

Abortion has been one such unenumerated right. Others based on the same legal foundation include same-sex and interracial marriage, and the right to contraception. 

Justice Alito holds that the federal right to abortion can be struck down without endangering same-sex marriage and other private rights.

Abortion is “sharply distinguish[ed]” from other substantive due process rulings, he writes, because, essentially, the life of an unborn child is at stake. 

“Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” he adds.

But the opinion is far from definitive on that important question.

“It’s really hard to believe that that is true when you actually read the way the opinion is couched. He writes things like, well, the word abortion doesn’t appear in the Constitution. Well, neither does the word woman,” says Professor Mutcherson. “I mean, there are lots of things that don’t appear in the Constitution, right?”

And Justice Alito cannot predict how future justices would interpret his decision.

“That suggests to many experts that they may go farther than this. It’s really hard to know. But I think same-sex marriage bans are probably back on the table as well,” says Professor Segall.

Justice Alito concludes in the draft opinion that it isn’t the court’s concern to “know how our political system or society will respond to today’s decision.”

“Even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision,” he adds.

What one activist wants to see

One anti-abortion activist thinks the main problem in the abortion space right now isn’t legal, but something else. 

“We have a culture problem, a heart problem, and it is multifaceted,” says Cherilyn Holloway, founder of Pro-Black Pro-Life, a progressive anti-abortion organization in Ohio.

Following oral argument in the Dobbs case, Ms. Holloway and her friends knew overturning Roe was becoming likely. But they decided they had not done enough to prepare for that moment.

“It’s really time to take our eyes off of the Supreme Court and put our eyes on our communities, to these families and these women and the unborn, and figure out what needs to happen so that this decision doesn’t seem catastrophic,” Ms. Holloway says. 

People legislating on behalf of unborn children at all political levels have been inconsistent when it comes to issues that can ease the burdens that come with giving birth, such as parental leave, health care for women and children, and food assistance programs, she adds.

The reproductive-rights side argues that poor Black women need access to abortion, says Ms. Holloway.

“No, what poor Black women evidently need are better-paying jobs, better opportunities, better and more resources,” she says.

Uncharted territory

However, at the moment Washington is intently focused on how the U.S. political system and society would respond to the demise of Roe – if that is what the final opinion, released sometime in the next two months, indeed does.

It’s possible it could motivate Democratic turnout, softening expected midterm losses in the House. But it’s also possible that abortion is not a top-tier issue for voters, as inflation and other economic markers are.

What it is likely to do is raise the importance of abortion as an issue in state politics, say some experts. That’s because if Roe is overturned, it is states that will be setting the terms for abortion in their borders. 

If abortion rights are overturned, the effect might be most acutely felt in gubernatorial races in the battleground states of Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin, tweeted Amy Walter, publisher of the Cook Political Report, on Tuesday. 

“Uncharted territory politically,” Ms. Walter tweeted.

It’s also uncharted territory legally. Twenty-six states are likely to ban abortion if Roe is overturned, according to the Guttmacher Institute, a research and policy organization that supports abortion access. Meanwhile, liberal states like California, Washington, and Maryland are planning to expand abortion access in anticipation of the Supreme Court abortion decision.

And that barely scrapes the surface of the potential complexity that could arise without a federal right to abortion. Missouri lawmakers, for example, are considering a bill that would empower private citizens to sue anyone who helps a Missouri resident get an abortion in another state. California and Connecticut have responded with bills that would shield abortion providers and patients from lawsuits initiated by other states.

The landscape is very different from that in the 1970s.

“We’re not going back to the pre-Roe world,” says Mary Ziegler, a professor at Florida State University College of Law, who was interviewed before the leak. “We’re going to a world where abortion medication is available on the internet.”

And that would raise another host of constitutional questions, says Rachel Rebouché, interim dean of Temple University Beasley School of Law. “The endgame for states like Missouri is not just to ban abortion but to ban it everywhere,” she adds. “But if you’re trying to stop people from [accessing] medication abortions, there will have to be some kind of focus on the patient ordering it and receiving it.”

If that comes to pass, it would mark a significant shift in abortion policy.

To date, even states calling for restrictions on abortion have avoided targeting the women seeking abortions. Instead, providers and, more recently, citizens who “aid and abet” women have been the targets. But that may change, says Professor Ziegler.

If you punish doctors and others, “maybe you get some enforcement of the law, but there will be lots of cases where you can’t,” she adds. “Then you’re left with a stark choice.”

“For so long the only conversation was, how does the movement get rid of Roe?” she continues. “There was much less of a conversation around once Roe is gone, what does the movement actually want, and how does the movement actually ban abortion?”