The Draft Opinion Overturning Roe

Yesterday, Politico published a draft opinion in Dobbs v. Jackson Women’s Health Organization by Justice Alito for a majority of the Supreme Court that would overturn, in its entirety, Roe v. Wade. Today, Chief Justice Roberts confirmed the authenticity of the draft. I want to provide some analysis of the legal and political consequences of the draft opinion, assuming that the Supreme Court eventually issues a substantially similar final version. As I explain later, I believe that it is very likely that the final majority opinion will closely resemble the draft that has been published.

The most important consequences of a decision like the draft opinion, at least in the medium run, would be the practical consequences with regard to the legality, safety, and availability of abortion. In quite a few states, abortion would become immediately illegal, punishable by criminal sanctions. In some states, including my state of residence of Michigan, the prohibitions would cover all abortions without exception, even abortions to save the life of the pregnant woman or in cases of rape. In other states — primarily the Northeast and the entire Pacific Coast, but also including several other states, primarily in the upper Midwest — the decision would not have any immediate effect on the legal status of abortion. But even there, it would shape the decisions of people as to where to move or live, as well as causing substantial effects in terms of people traveling in from out-of-state to seek abortions. Those direct, practical effects are the overwhelming short-run consequence if the Court does in fact overturn Roe, but I won’t be spending much time analyzing them. I’m not an expert on reproductive policy or availability, or the likely consequences of this decision in practical terms, so I’ll leave discussing that to people who have more insight than I do. But I wanted to flag the point and underscore the direct importance before talking about the legal, political, and institutional consequences of the publication of the draft opinion.

I begin by discussing the legal consequences of this opinion, assuming throughout that it is issued in substantially similar form. While Justice Alito argues that his opinion would return the issue of abortion to legislation and remove the courts from this area of law, I believe that this would trigger substantial new litigation in both federal and state courts that would continue to constitutionalize much of the ongoing wrangling about the legality of abortion. I then turn to the political consequences of eliminating Roe. Finally, I discuss the leak of the draft to the media, in terms of both who might have stood to gain from that and how the leak will affect the Court.

The Legal Consequences of the Draft Opinion

The draft opinion repudiates Roe, Casey, all the other cases on abortion based on them. It is sweeping in its effects, declaring that Roe was wrongly decided, that there is no constitutional right to choose to have an abortion, and that state laws regulating abortion are subject to only “rational basis” review. Rational basis review is a familiar standard to lawyers that asks only whether a law could rationally further some legitimate state interest. Almost all government action passes rational basis review — it is often described as asking only whether the government’s reasoning passes the laugh test. As a result, Justice Alito argues that his opinion would shift abortion policy back to the legislatures of the various states, where he asserts it belongs. While the decision would shift the balance of responsibility towards the legislatures, it would not, in fact, extricate the courts from the field of abortion — and indeed could not, absent a major restructuring of our political system.

One of the immediate consequences of the draft’s publication has been a push to pass a federal statute guaranteeing a right to abortion. The bill has already passed the House of Representatives, and Sen. Schumer has said that he will call for a vote on the legislation in the Senate. Given the current composition of the Senate, there might be a majority of the Senate in favor — almost all of the 50 members of the Democratic caucus of the Senate are pro-choice, with only Sen. Manchin of West Virginia and Sen. Casey of Pennsylvania self-describing as pro-life but also sometimes voting in favor of reproductive rights. On the Republican side, there are three senators who self-describe as pro-choice — Sen. Susan Collins of Maine, Sen. Lisa Murkowski of Alaska, and Sen. Shelley Moore Capito of West Virginia — but in the converse of Sens. Manchin and Casey, they have each cast votes that undercut reproductive rights, most notably but not exclusively in judicial confirmation votes. With Roe overturned, it seems reasonably likely that at least 50 senators would support a law seeking to codify Roe’s protections — likely something like 48 or 49 Democrats plus Sens. Murkowski and Collins — but not that there would be 60 votes to break a filibuster. While in principle the Senate could amend its rules to end filibusters with a bare majority — and almost certainly will at some point — I doubt that a bare majority cobbled together with a couple of Republican votes and a couple of Democrats (Sens. Manchin and Sinema) who have expressly rejected ending the filibuster will do so. At the same time, the numbers are close enough that the possibility of a future Senate with just a few more pro-choice members passing a reproductive rights bill is very real.

Were a federal statute to codify something like Roe or Casey’s holdings, courts would be immediately asked to determine whether the statute was within Congress’s constitutionally delegated powers. Current precedents foreclose the argument that Congress could use its authority under the Fourteenth Amendment to enforce equal protection beyond the scope of equal protection recognized by the Supreme Court. In effect, despite clear text in the Fourteenth Amendment and unambiguous evidence that the framers of the Fourteenth Amendment intended it to be primarily a grant of power to Congress to act to provide equal protection in an environment where states often sought to abrogate it, the Supreme Court has judicially reconstrued it to be primarily a source of court-interpreted and vindicated rights. In light of these precedents, I doubt that the Supreme Court would even consider claims that a federal reproductive freedom statute could be supported by the Fourteenth Amendment. However, Congress would also justify any reproductive freedom statute as supported by its expansive powers under the Commerce Clause.

Since the “switch in time that saved nine,” when the Supreme Court abandoned the Lochner Era series of cases and upheld the later part of the New Deal, the Commerce Clause power has allowed Congress to legislate about anything that even vaguely affects interstate commerce. Racial discrimination in a local restaurant? Affects the willingness of African-Americans to travel, and therefore affects interstate commerce. Consumption of grain grown on a farm in violation of federal rules by animals on that farm? Reduces the demand for grain grown by other farms, including farms in other states, so affects interstate commerce. Growing marijuana in a state in which local law does not prohibit marijuana for consumption by the person growing the marijuana? Reduces the demand for marijuana in the (illegal) interstate marijuana market, and therefore affects (illegal) interstate commerce, which brings even simple possession of marijuana within the federal commerce power. Under those precedents, it seems obvious that whether abortion is legal — something which plays a major role in determining where people are willing to work and live, where businesses are established and conduct their operations, and of course involves commercial transactions (paying for medical services), some of which involve people crossing state lines to receive those services — affects interstate commerce.

But would a Court that struck down Roe v. Wade because of its belief that the interests in “protecting a human life” involved in abortion are so critical, and that it is the unique purview of state legislatures to make the hard decisions, accept that a federal law creating a right to abortion was justified by the Commerce Clause? The Supreme Court has rejected several federal laws as overreaching the Commerce Clause authority of Congress — for example, the Violence Against Women Act and the Gun-free School Zones Act. When Congress passes laws that are both aimed primarily at addressing social problems that are not directly related to commerce, albeit with some affect on commerce, and that touch on hot-button political issues like women’s rights to be protected from sexual violence and gun control, the Republican majorities on the Supreme Court have been willing to say that Congress wasn’t really legislating about interstate commerce. How would the courts handle a federal statute about reproductive rights? Lower courts would split, with some holding that it was within the broad Commerce Clause powers, while others would hold that it was Congress attempting to dress up a state power — the general “police power” to legislate to protect the people’s life, health, and morals — as the Commerce Clause power. I think it’s more likely than not that the Supreme Court would then conclude that this law went too far — because the justices substantive beliefs about whether abortion should be legal are driving their legal conclusions about whether abortion is legal. The precedents of the Court weigh in favor of upholding Congressional action. But the precedents of the Court were also unambiguously clear that the right to privacy included the right to have an abortion prior to fetal viability, and just like in this case, there are reasonable legal arguments that would allow a Court that opposes the legality of abortion to strike down a federal law.

Okay, but what if Congress doesn’t act? Are the courts out of the abortion business then? Not really. First, arguments will be made that state constitutions provide a Roe-like right, even if the federal constitution doesn’t. Those arguments will result in widespread state court litigation. Second, litigants will continue to argue that some abortion laws go too far. Does a law that criminalizes abortion even when necessary to save the life of the pregnant woman violate the Constitution? Courts will need to decide. What about laws that prohibit abortions that are necessary to preserve the health of the pregnant woman? Because an abortion is safer than carrying a pregnancy to term as a factual matter, any abortion prohibition causes some risk to the health and survival of pregnant women. Where those lines get drawn, however, will be the subject of substantial litigation. It’s possible that the Supreme Court will draw every line in deferring to state legislatures, but that requires accepting some fairly horrific fact patterns, because some state legislatures will refuse to compromise at all.

And then there’s the lurking elephant in the room: if fetuses are human lives, legally speaking, aren’t they entitled to Equal Protection under the Fourteenth Amendment? And wouldn’t that mean that failing to prohibit abortion violates the Equal Protection rights of the fetus? Justice Alito attempts to separate Roe and its direct progeny from other “right to privacy” cases by arguing that abortion is unique, because only abortion “terminates life or potential life.” Dobbs draft opinion at 62 (internal quotation marks omitted). But precisely because prohibitions on abortion are based on good faith beliefs that an abortion ends a human life, which Justice Alito stresses throughout the draft, in a legal context that permits state legislatures to categorize fetuses as human lives, it is impossible to avoid the question of whether fetuses have a right to Equal Protection.

Furthermore, Justice Alito uses the test of whether a right is deeply rooted in the American legal tradition and essential to the concept of ordered liberty to argue that Roe should be overruled. In attempting to show that the abortion cases were wrongly decided, he marshals a long assemblage of historical materials to advance the argument that abortion was basically always treated as a criminal act prior to Roe. I understand that historians of reproduction and sexuality believe that the actual history is much more complicated than Justice Alito makes it out to be. Nonetheless, his law office history is part of the reasoning of the draft opinion. When faced with the question of whether fetuses have a right to be protected from abortion, courts would have to consider Justice Alito’s recitation of history as weighing in favor of concluding that abortion must be prohibited.

The current Court majority might well be unwilling to go that far. They could conclude that, at least in the post-Roe context, neither reproductive rights nor a right of fetuses to protection from abortion exists as a constitutional right. But in doing so, they would be weighing their beliefs about abortion, about whether fetuses should be considered people, against their perceptions of the political situation and what would be acceptable to the people — precisely the same sorts of considerations that Justice Alito excoriates the Roe Court for considering. Justice Alito claims that “our [draft] decision is not based on any view about when a State should regard pre-natal life as having rights or legally cognizable interests.” Dobbs draft opinion at 29. It’s impossible to take that claim seriously. The whole tenor of the opinion makes clear what is obvious to any observer: the reason the justices who preliminarily supported the draft opinion view Roe as “egregiously” wrongly decided and in need of overturning is precisely because they believe, very strongly, “that abortion kills a human being.” Id.

My point here is not that the Dobbs draft would not shift power over abortion towards (at least state) legislatures and away from (at least federal) courts. It certainly would. My point is that the courts cannot, in fact, avoid a role in line drawing on abortion laws. Justice Alito argues that part of the reason to overturn Roe is that it has led to warping or distorting of other legal doctrines because they touch on abortion, and that overturning Roe will end those effects. But legal controversies involving abortion will still come before the courts, whether over restrictions on protests intended to block access to clinics offering abortions, conflicts between state and federal statutory law on abortions, or questions of whether states can functionally deprive people of constitutional rights by artfully drafting statutes to purportedly avoid any state action. In resolving those questions, justices will rely to a significant degree — not exclusively, but influentially — on their personal beliefs about whether abortion should be prohibited. Judging isn’t purely a political act, in which judges decide cases based on personal preference and nothing more. Judging is, however, decidedly in part a political act, in which judges’ personal convictions and conscience plays a key role. That continues to be true when the current Supreme Court majority, which exists only because of gross irregularities in how justices have been appointed, substitutes its convictions for those of the Roe Court.

Finally, I want to touch briefly about other “right to privacy” based constitutional rights. Justice Alito’s draft explicitly states that it only overrules cases about abortion. Other decisions based on a right to privacy, such as Griswold v. Connecticut (invalidating laws restricting access to contraception), Lawrence v. Texas (striking down laws criminalizing consensual same-sex sexual activity), and Obergefeld v. Hodges (holding that same-sex couples have a right to be able to marry), are directly described as unaffected by the opinion. But why? Every argument that is mustered in favor of concluding that a right to choose whether to have an abortion is not deeply rooted in American jurisprudence or a necessary part of ordered liberty applies with full force to gay rights or to rights to contraception. Roe is not a strange outlier to those cases, a frolic with no connection to the rest. Rather, it’s a major, arguably the principal, tentpole for the whole doctrinal area. And yet Justice Alito claims that removing the tentpole and the portion of the tent directly around it leaves the rest of the structure completely intact.

The only reason I can see for his insistence that abortion is different in a special qualitative way from other examples of right to privacy doctrines is because on the one hand, his belief in the personhood of fetuses is stronger than his belief that homosexuality is wrong, and on the other because the backlash to undercutting those other areas of doctrine might be more severe. Of course, both of those are considerations that Justice Alito unconvincingly disclaims. He says it’s because only abortion involves the termination of a “life or potential life,” suggesting that he thinks that the state interests in prohibiting abortion are higher than the state interests in limiting contraception or criminalizing homosexual relationships. In deciding the case, however, he adopts a rational basis standard — a standard that doesn’t require any particularly strong state interest or any weighing of the state’s interest against the liberty interests of the pregnant person. And surely if subjected to rational basis review, almost all of the laws that have been struck down under right to privacy doctrines would be upheld. So what we’re left with is just, Justice Alito and his allies on the Court view prohibiting abortion as much more important than prohibiting same-sex marriages or contraception. He then asks those of us who care about those rights as well to treat them as secure, despite the fact that many of the same people who have been fighting tooth and nail to overturn Roe have argued at the same time for the same reasons that Griswold, Lawrence, and Obergefell were wrong as well.

This analysis is already very long, and I’m only wrapping up the first part. I’ll write about political consequences and the Court as an institution tomorrow.

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