Saturday, May 27

The consequences of the leaked draft opinion go far beyond abortion rights

The leak of a draft Supreme Court opinion that would overturn Roe v. Wade felt like a tsunami as the news spread across the country. The shock was not just how unceremoniously the draft opinion jettisoned a nearly 50-year-old landmark decision, but also its shattering of long-held judicial norms.  

Even for those braced for an end to Roethe opinion’s strident language, complete contempt for Roe and utter disregard for pregnant people’s interests were jarring. The leaked opinion has far-reaching implications with respect to reproductive justice and health care but also other privacy rights, including those recognized before Roe was decided, as well as the integrity of the court.

In 1973, the Supreme Court declared a constitutional right to abortion in Roe v. Wade. Recognizing the competing interests of women in autonomy over their bodies and of the state in potential life and maternal health, it allowed states to ban abortions only at the point of viability, i.e., when the fetus can survive outside the womb. Even then, the court retained an exception to protect maternal life and health. Nearly two decades later, in Planned Parenthood v. Casey (which the leaked opinion also explicitly overrules) the court reaffirmed Roe’s “central holding” that abortions could not be banned before viability.

Even so, some states enacted pre-viability bans, which the Supreme Court repeatedly refused to consider on appeal — that is, until last term. The reproductive landscape shifted with the court’s decision to grant certiorari for Dobbs  v. Jackson Women’s Health Organization, which centers on a Mississippi law banning abortions at 15 weeks. Once the late Justice Ruth Bader Ginsburg’s seat was filled by Justice Amy Coney Barrett, leading to a 6 to 3 conservative majority, Mississippi pressed the court to overrule Roe and Casey. The tenor of the justices’ comments during oral argument last December suggested there was a majority with an appetite to do just that.

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If the substance of this draft opinion, which the chief justice has emphasized is not final, becomes law, it would allow states to ban abortions outright. And it would allow such bans even in cases of rape or incest; Mississippi’s ban only has exceptions for severe fetal anomalies or medical emergencies. Moreover, nothing in the leaked opinion asserts that any exception, including where the life of the mother is at stake, is constitutionally required.

The impact of this ruling would likely end the right to abortion in more than two dozen states that have expressed strong hostility to abortion rights, or that have trigger bans, which allow abortion bans to take effect once Roe is overturned. The inaccessibility to abortion in states with various abortion regulations will only increase. Of course, some states have been working to expand access to abortion for people in their state and other states. The result, however, will be a heightening of existing disparities in reproductive health where abortion is least accessible to the most vulnerable: low-income people and people of color. Further, if the Republicans gain a majority in Congress, they might attempt to ban abortions nationally. Whether Congress has the constitutional authority to enact such a ban remains to be seen, but a decision like the leaked opinion would certainly embolden a conservative Congress.

At stake is not just the liberty and privacy interests of pregnant people, but also their physical wellbeing. Because abortion is an essential aspect of health care, abortion restrictions endanger pregnant people by forcing them to delay abortions or endure pregnancy, which is riskier for those with an unwanted pregnancy than abortion. Although we are no longer in a pre-Roe world where coat-hanger abortions are the only alternative, safe and effective self-managed abortions could also be threatened by a ruling that overturns RoeSome states already limit access to medical abortions by banning telehealth visits or by banning such abortions as early as 7 weeks. A decision like the leaked opinion creates the possibility that states may criminalize women for self-managed abortions.

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Beyond the concerns about reproductive health and justice are the implications for other established constitutional rights, such as the right to contraception and same-sex marriage. 

With its easy dismissal of precedent and criticism of the constitutional underpinnings of Roethere is little comfort in the draft opinion’s claim that it only addresses abortion and nothing else. The opinion claims that the right to abortion differs from other rights, but to the extent that those are established through “penumbras” of the Constitution (areas of the Bill of Rights that feature implicit guarantees), it’s easy to believe that the draft opinion’s analysis is setting the stage for tearing down other precedents.  

The penumbras were critical to the Court’s decision in Griswold v. Connecticutwhich established a right to contraception for married people. Griswold, in turn, helped shape the analysis of Obergefell v. Hodges, which established a right to same-sex marriage. Perhaps most telling, however, is that this decision would probably mark the first time the court overturned precedent to eliminate, as opposed to recognize, a new right. 

Finally, all Americans, whether they support abortion rights or not, should be troubled by the long-term consequences of this leak because it undermines the integrity of the court. As others have noted, “the rule of law should speak with a final voice,” not the “tentative” voice of a draft opinion. It also undermines careful internal deliberations by making justices fearful that their private discussions could be exposed for all the world to see, and that potential changes in position would subject them to public censure. Finally, it politicizes the judicial process; any changes from the draft opinion may appear to be the result of public pressure. The public’s approval of the court is already the lowest it has been since polling started. For such a leak to occur within the highest court only further damages its authority. If long-held norms of confidentiality can be undone, what is to stop the unraveling of norms that people adhere to Supreme Court decisions? Ultimately, what is at stake is the enforceability of the rule of law.

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The leak was devastating for so many reasons, not least of which was an undermining of equal citizenship for those who can become pregnant and the future of our democracy.

Sonia Suter is a professor of law at The George Washington University Law School and founding director of the Health Law Initiative. 

Naomi Cahn is a professor of law at the University of Virginia School of Law and co-director of UVA Law’s Family Law Center.

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