Overruling Roe is Just the Beginning

Posted in: Constitutional Law

We may never know who leaked Justice Samuel Alito’s draft opinion overruling the Supreme Court’s cases finding a constitutional right to abortion, or why they did so. Was it an angry law clerk for a liberal Justice unwilling to wait another two months to spark outrage among pro-choice voters? Or perhaps it was a conservative law clerk or even a conservative Justice who worried that one or more of the Justices comprising the initial majority had not yet joined the lead opinion or was seeking changes to soften the ruling. Or maybe it was simply some other member of the Court’s staff for reasons of their own.

Whoever the leaker is and whatever goals they sought to achieve, there remains a possibility that the ruling the Supreme Court hands down by the end of the Term will look substantially different from the now-public draft in Dobbs v. Jackson Women’s Health Org. But don’t count on it. Although Justices sometimes change their votes after the conference, they do so rarely. Moreover, the oral argument last December strongly indicated that five Justices—Thomas, Alito, Gorsuch, Kavanaugh, and Barrett—were inclined to overrule Roe v. Wade and Planned Parenthood v. Casey, the 1992 decision that reaffirmed what the Court then called Roe’s “central holding.” Justice Alito’s draft does just that.

Accordingly, it is not premature to analyze the draft on the tentative assumption that within the next couple of months, most abortions will be illegal in much of the country. Beyond that, Justice Alito’s draft concludes by saying that the Court “cannot pretend to know how our political system or society will respond to overruling . . . Roe and Casey.” He is right in some sense. Politics and society are like the weather—chaotic systems in which even a minor disturbance can ripple chaotically and unpredictably. Yet in another sense, we know exactly what comes next: more profound disruptions from this emboldened Court with a super-majority of Republican appointees.

Abortion Cases Will Continue to Come Before the Court

Under Roe and Casey, government may not forbid or unduly burden the right to have an abortion before fetal viability—which typically occurs around 24 weeks into a pregnancy.  Justice Alito’s draft opinion would discard that framework and substitute for it the “rational basis” test, the Court’s lowest level of scrutiny for laws challenged as burdening liberty. That test is so forgiving that on the very rare occasions that the Court invalidates a law using it, critics typically accuse the Justices of applying covert heightened scrutiny. Virtually any law can survive the rational basis test.

Yet it does not follow that overruling Roe and Casey will take the Court “out of this area,” as Justice Antonin Scalia advocated in his Casey dissent. The Alito draft in Dobbs finds that legislators have a “legitimate interest” in “respect for and preservation of prenatal life at all stages of development.” That interest suffices to sustain Mississippi’s ban on abortions after 15 weeks of pregnancy. Would it suffice to sustain a ban on all abortions?

Some forms of contraception prevent implantation of a fertilized egg. The Alito draft in Dobbs does not purport to overrule the Court’s decisions finding a constitutional right to contraception. Would the application of an abortion ban to such methods of contraception be sustained under the rational basis test of Dobbs? Or would they be covered by the right to contraception?

Roe and Casey held that even after fetal viability, laws forbidding abortion were constitutionally required to include an exception for abortions necessary to preserve the life or health of the pregnant woman. Does government have a rational basis to prefer fetal life over a pregnant woman’s life? Or does a higher standard of scrutiny apply in such cases? If so, on what basis? Even if the Court finds a constitutional right to a life-saving abortion, what about abortions necessary to preserve health? What level of risk will legislatures be permitted to impose on women compelled to continue their pregnancies?

Speaking of legislatures, Justice Alito’s Dobbs draft seems deliberately misleading about where the power to regulate abortion will now lie. For example, at page 31, the draft offers the fact that “the people of the various States may evaluate” the interests involved in abortion differently. There and elsewhere, the draft concludes that “the people’s elected representatives” should therefore be the ones to decide abortion policy. Yet, as Justice Alito well knows, in our system of federalism, the people are represented in both state legislatures and Congress.

Before the Dobbs draft leaked yesterday, the Washington Post ran a story revealing that anti-abortion activists have begun organizing to push for a federal abortion ban that would apply throughout the country. If Republicans capture Congress and the White House, they could enact such a ban with 60 votes in the Senate or a mere 50 if they decide that ending abortion justifies abolishing the filibuster. What then? In a concurrence in a 2007 case sustaining a federal law banning so-called partial-birth abortion, Justice Clarence Thomas—who takes a narrow view of the scope of congressional power—hinted that he would be open to invalidating a federal law regulating abortion on the ground that the issue is reserved to the states. Would he follow through on that hint if an outright ban were challenged on such federalism grounds? Would any of the other conservatives?

What about religious exceptions? Few major religions ever require an abortion, but in recent cases the Supreme Court has emphasized that idiosyncratic religious views are constitutionally protected. Just as people who previously had not objected to vaccination have recently discovered that they have religious scruples against COVID-19 vaccines, so too we can expect claims for religious exceptions to abortion prohibitions. Will the otherwise religion-friendly conservatives on the Supreme Court honor such claims?

The Dobbs draft would leave the foregoing and many other questions open. It would transform—not end—constitutional litigation over abortion.

Other Constitutional Rights, Especially LGBTQ+ Rights

The Dobbs draft would also inject uncertainty into the remaining validity of other constitutional rights.

In Casey, the Supreme Court said that a woman’s interest in avoiding being forced to carry an unwanted pregnancy to term was broadly similar to the interests protected by other rights protecting bodily autonomy and intimate association. “The weight to be given” the government’s interest in fetal life, “not the strength of the woman’s interest, was the difficult question faced in Roe,” the Casey Court opined. The current Court could overrule Roe and Casey by re-evaluating the strength of the interest in fetal life and finding it “compelling”—the standard needed to override constitutional rights. In so doing, an overruling decision would leave other constitutional rights secure.

The Alito draft does not take that course, however. Instead, it adopts a narrow historical test for constitutional rights that, if applied consistently, would jeopardize many other rights.

To be sure, the Alito draft suggests that abortion is unique. For example, at page 32, the draft states that overruling Roe and Casey “does not undermine” other constitutional rights, because, unlike the exercise of other rights, “[a]bortion destroys . . . the life of an unborn human being.”

Yet tellingly, in the course of the same discussion, the Alito draft engages in a critical sleight of hand. It first notes that Roe and Casey relied on prior cases recognizing such rights as the right to marry, to direct the education of one’s children, and to avoid unconsented surgery. It then also notes that the plaintiffs and the United States as amicus had connected the abortion right to the right of consenting adults to engage in same-sex sexual conduct (recognized in Lawrence v. Texas in 2003) and the right of same-sex couples to marry (recognized in Obergefell v. Hodges in 2015). Notably, however, the Alito draft then goes on to distinguish “the abortion right from the rights recognized in the cases on which Roe and Casey rely.” Crucially, Roe and Casey do not rely on Lawrence or Obergefell, as both of those rulings post-date Roe and Casey. The not-so-subtle implication is that the Court stands prepared to overrule Lawrence and Obergefell.

Other Actions

The Alito draft also portends radical changes in constitutional law across the board. A Supreme Court willing to flatly overrule rather than chip away at the abortion right—despite the fact that it has been repeatedly reaffirmed even by Republican appointees—is clearly unconcerned about appearing extreme. We can expect similarly bold moves in the near future.

Within two months, the Court could find a constitutional right to carry loaded guns on the New York City subways. Within a little over a year, the Court will likely forbid all race-based affirmative action. In due course, the Court’s Republican-appointed super-majority could find that Republican state legislatures are constitutionally empowered to disregard the results of a presidential election based on evidence-free claims of fraud.

Is any of that inevitable? Perhaps not. Perhaps the leak of the Alito draft was a desperate move by someone inside the Court who saw the majority for overruling the abortion right slipping away and hoped to lock in a wobbly vote by engaging the conservative base. If so, maybe the leak will backfire.

But such speculation is probably only wishful thinking and perhaps willful blindness. At least since the Reagan administration, Republicans have been crusading to transform the courts with the aim of overturning Roe and other precedents that reflect a changing society. Having finally secured the levers of judicial power through a combination of hardball politics and the good luck to have exploited the least democratic features of our political system—the Electoral College and the Senate—it should come as no surprise that the reactionary Justices are willing to push down hard on those levers.

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