May 3, 2022 | Reading Time: 4 minutes

Republican justices appear ready to strike down Roe before overturning other privacy rights

Samuel Alito's assurances are hardly comforting.

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Editor’s note: I usually put Mia’s work behind a paywall, but not this time. This is too important. However, it would be super duper great if you subscribed. We can’t do this alone. See link below. Thanks! –JS

Last night Politico published what’s apparently a leaked opinion draft for Dobbs v. Jackson Women’s Health, the case that could overturn Roe v. Wade. Since the Supreme Court is currently 6-3 with at least five ultra-conservatives, no one is expecting it to uphold Roe or protect abortion rights. However, this leaked opinion does show the most radical and conservative path to overturning Roe as well as Casey

If accurate, we’re deeply screwed.

(The AP reports that the draft opinion is “authentic.”)

They could have thrown out the viability framework and redone the trimester framework to uphold the 15-week ban, thus rolling back Roe without overturning it. This opinion doesn’t do that.

If the Supreme Court’s Republicans want to roll back abortion rights (and they do), they have many paths with this case. At issue is a 15-week abortion ban that’s unconstitutional under the current precedent of Roe v. Wade and Planned Parenthood v. Casey

Roe ruled there was a constitutional right to an abortion in a constitutional right to privacy that’s inherent in the due process clause of the 14th Amendment. Many would argue that there’s a clear implied right to privacy in the Fourth Amendment of the Bill of Rights, which prohibits unreasonable searches and seizures (why would law enforcement need a warrant if you didn’t have a right to privacy?). 

Roe also ruled that as a pregnancy continued, the state had to balance its interest in protecting life with the pregnant person’s right to privacy and used a trimester framework. Planned Parenthood v. Casey changed the trimester framework to a viability framework.

A 15-week-old fetus obviously is incapable of living outside the womb, but it is in the second trimester, which according to Roe allows for more government intrusion than a first semester pregnancy. 

The Republican justices could have thrown out the viability framework and redone the trimester framework to uphold the 15-week ban, thus rolling back Roe without overturning it. This opinion doesn’t do that.

In the leaked draft opinion written by Justice Samuel Alito, he writes that “Roe and Casey must be overturned” and that “Roe was egregiously wrong from the start.” Alito continues, saying smugly that “Roe expressed the ‘feel[ing]’ that the Fourteenth Amendment was the provision that did the work, but its message seemed to be that the abortion right could be found somewhere in the Constitution and that specifying its exact location was not of paramount importance.”

That’s weird. The court said in Roe that the right was protected in the due process clause. Decades of case law clarify the legal justifications. 

Alito’s language calls into question every right that has been built on a constitutional right to privacy with respect to the due process clause – especially cases concerning the privacy of sexual behavior. 

Alito says that the draft opinion is only meant to concern abortion. However, he goes on link the justification of abortion to the justification of birth control, gay marriage and private sexual behavior. 

I’m not comforted by that assurance.

Alito claims abortion “is not deeply rooted in the Nation’s history and traditions,” and so we cannot assume the 14th Amendment protects it. 

This claim is flawed in a number of ways, including the fact that the amendment protects lots of things that weren’t “deeply rooted in the Nation’s history” like Black people having equal rights. 

Alito says overturning Roe is like overturning Plessy v. Ferguson to justify overturning precedent but seems to miss that “separate but equal” wasn’t seen as violating the 14th Amendment until 1954. 

Additionally while the 14th Amendment was ratified at a time that abortion restrictions were gaining popularity, criminalizing abortion, particularly before quickening, was a new development. 

Alito is right that a “right to abortion” was not recognized historically but that is partially because abortion wasn’t even a legal issue until the mid-19th century. It was considered the purview of women and therefore mostly ignored by the law. US law is indeed built on the common law tradition which, despite what Alito and conservative scholars claim, was accepting of abortion before quickening

I’ve written before that the history of criminalizing abortion is directly tied to changing gender roles, the medicalization of gynecology and fears of white replacement theory and “race suicide.”

Despite that history, Alito repeats a horrendous and racist lie in a footnote that one liberal motivation for supporting abortion is a “desire to suppress the size of the African-American population.” 

Imani Gandy successfully debunked the claim that Margaret Sanger and Planned Parenthood were racists pushing birth control and abortion on Black people as population control. This racist lie, however, just won’t end. In reality, abortion and reproduction control were vital tools of Black women’s agency during enslavement.

It’s very rare for an opinion to be leaked. It’s important to emphasize this is still a draft even if accurate. It’s possible a clerk for Roberts leaked the draft in the hope that public outrage would push the conservative wing to moderate the decision to be less extreme. 

It’s likely that Kavanaugh, Thomas, Barrett and Gorsuch would be happy to sign on to this ultra-conservative opinion while Kagan, Breyer and Sotomayor will almost certainly dissent. 

However, it remains unclear if Roberts would sign on or would only side with the majority if it chose a less extreme path. 

We can hope the final decision will be more moderate, though there’s no possibility that a majority opinion that upholds Roe in any way will resemble the current precedent. In the meantime abortion is still legal so keep your appointments and donate to abortion funds.

Mia Brett, PhD, is the Editorial Board's legal historian. She lives with her gorgeous dog, Tchotchke. You can find her @queenmab87.

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