Last Tuesday, US Supreme Court Chief Justice John Roberts confirmed the authenticity of the leaked draft opinion, written by Justice Samuel Alito, in Dobbs v Jackson Women’s Health Organization. Roberts reported that the court is investigating this leak, stressing that the opinion “does not represent a decision by the court or the final position of any member on the issues in the case.” Nonetheless, the leak has proved to be of seismic significance, given that it is drafted as a majority opinion (Politico, which first reported the leak, says is supported by five Justices—Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett) and holds that the famous 1973 Supreme Court precedent of Roe v Wade should be overturned—on the basis that, contrary to Roe, the US Constitution does not protect the right to abortion. The opinion would remove the federal layer of protection and hand the decision on abortion law back to the states.
Dobbs was heard by the Supreme Court last December and the opinion would normally have been released this June or July. The caserelates to a 2018 Mississippi law, the “Gestational Age Act,” which prohibits all abortions—with few exceptions—after 15 weeks. This law was challenged by the Jackson Women’s Health Organization (the only licensed abortion facility in Mississippi, in itself a remarkable fact) on the basis that it is unconstitutional, given the earlier Supreme Court holdings of Roe v Wade and also Planned Parenthood v Casey. The Supreme Court, in ruling (at least in draft) on this case, has employed reasoning as confused as it is dangerous.
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The Dobbs case is by no means the only chance the Supreme Court has had to reconsider Roe v Wade. Roe was unambiguously reaffirmed in 1992 in Casey (by a largely conservative majority) and most recently in Whole Woman’s Health v Hellerstedt in 2016. But this leaked opinion, drafted by the most consistently conservative justice on the court, has proved shocking not only because, unlike these other precedents, it overrules Roe, but also because of its vehement and excoriating criticism of the 1973 judgment.
Alito’s assault on Roe is vicious. He castigates the ruling as “egregiously wrong from the start,” and “far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed.” At its very beginning, Alito’s opinion states: “We hold that Roe and Casey must be overruled. The constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.” In particular, Alito finds that the right to abortion cannot be derived from implied rights to privacy in the constitution, nor from the right to liberty in the due process clause of the 14th Amendment. He also sees no problem in departing from the doctrine of stare decisis—which obliges caution in overruling a settled Supreme Court precedent—because “An erroneous constitutional decision can be fixed by amending the constitution, but our constitution is notoriously hard to amend. Therefore, in appropriate circumstances we must be willing to reconsider and if necessary overrule constitutional decisions.”
The Alito opinion lambasts the reasoning in Roe as “exceptionally weak.” Yet Alito’s opinion is riddled with weaknesses. To be sure, he clearly expended much energy in arguing this opinion vigorously. But unlike some, I do not believe this makes the Dobbs opinion itself well-reasoned (whatever one may think of Roe). The right to abortion is not explicitly present in the US Constitution (but then neither are many things, such as corporate speech, or indeed women). Where fundamental rights are not explicitly stated in the constitution, case law has sought to justify them as “deeply rooted in this nation’s history and tradition.” Justice Harry Blackmun, who authored the Roe opinion, wrote that state laws banning all abortion were not of ancient origin, but only dated back to the late 19th century. Prior to that, abortion in early pregnancy was legal in most states. But Alito insisted that Roe “either ignored or misstated this history,” because “an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.”
However, in the short time since the opinion was leaked, a wealth of historical material has come forward to contradict Alito. Indeed, the amicus briefs (submissions from external interested parties) in Dobbs include information from historical associations, asserting that “The central historical claims in Roe were accurate… and remain so today,” noting that “The common law did not regulate abortion in early pregnancy. Indeed… common law did not even acknowledge a foetus as existing separately from a pregnant woman until the woman felt foetal movement, called ‘quickening,’ which could occur as late as the 25th week.” Although the Alito draft acknowledged the historians’ submission, Alito himself relied far more heavily on other sources, including a brief from legal scholars Robert P George and John M Finnis, challenging the historical scholarship supporting Roe. Alito also approvingly cited the 17th-century English jurist Matthew Hale, a misogynist if ever there were one, who presided over trials of witches. The Alito opinion has been lampooned as “medieval.” But in fact, the bulk of historical evidence reveals that, up to the later 19th century, there was more toleration of abortion than there is by the present Supreme Court.
Alito’s interpretation is that of an originalist, looking to the historical context of the drafting of the constitution and the 14th Amendment. Yet there is absolutely no rule dictating that the US Constitution may only be interpreted according to the beliefs and practices of those who drafted it. Indeed, case law and constitutional scholarship rebuts such approaches. Instead, the constitution, which is drafted in terms of broad guarantees, has frequently been interpreted to respond to the needs of an evolving and much-changed society, and Roe v Wade provides one of many such Supreme Court interpretations.
The Alito opinion plays fast and loose with precedents
Alito’s abandonment of Roe and Casey, and thus stare decisis, is also questionable. He fails to acknowledge just how important a precedent Roe has been for two generations of Americans, and that many have structured their lives around its holdings. Roe has not only been consistently reaffirmed by the Supreme Court but upheld in the lower courts. The American Bar Association and 236 members of Congress submitted amicus briefs in Dobbs emphasising that there were compelling reasons toadhere to the Roe precedent. During the oral argument, Justice Breyer stressed that such a landmark decision should be overturned only with compelling justification, which is not the same as a majority of the present court believing the case was wrongly decided. Alito gives examples of the Supreme Court overturning its own precedents—such as Brown v Board of Education, which overturned the egregious “separate but equal” standard for race segregation in Plessy v Ferguson. But overturing precedent in those cases expanded, rather than constricted, constitutional liberty.
The Alito opinion plays fast and loose with precedents. It was also argued in Dobbs that the abortion ban could be unconstitutional under the “equal protection” clause of the 14th Amendment, as an example of gender discrimination. Yet according to Alito, such arguments were “squarely foreclosed by our precedents, which establish that a state’s regulation of abortion is not a sex-based classification.” Well, is precedent important or is it not?
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If the Supreme Court overturns Roe, dire consequences have been predicted. Many states already have “trigger” laws in place that would ban abortion as soon as it is constitutional to do so. Some states would only permit abortion if a woman’s life is imperilled by pregnancy, making no exception for rape or incest. These laws themselves can severely threaten women’s safety. In Ireland in 2012, before the country’s strict abortion ban was repealed, Savita Halappanavar died of septic shock after she developed an infection during a miscarriage. Doctors refused to terminate the pregnancy while there was still foetal cardiac activity.
An abortion ban is also likely to subject women seeking to terminate pregnancies—even those suffering miscarriages—to homicide laws, along with anyone who aids them. This week a bill was advanced by the Louisiana legislature that would make abortion a homicide.
With Roe gone, states will have to clear only the lowest bar to demonstrate that their law is constitutional—it will simply require a “rational basis.” This is the most deferential standard, and far less robust than the current position (Casey requires that laws do not place an “undue burden” on women seeking abortion).
Should conservative states ban abortions, there would be a huge increase in women seeking one elsewhere, where they are still legal. But we might see some states attempting to ban women from travelling in such circumstances. This is not theoretical. In 1992, in Ireland, a court granted an injunction to prevent a 14-year-old rape victim from travelling to the UK for an abortion (this was eventually overturned by the Irish Supreme Court). And in 1958 Mildred and Richard Loving were prosecuted for leaving Virginia for an interracial marriage in Washington DC (under a restrictive anti-miscegenation law eventually overturned in 1967 in Loving v Virginia).
Leaving the states to decide will exacerbate already polarised approaches, promoting a war of state against state
This March, a Missouri legislator introduced an (unsuccessful) amendment aiming to stop residents seeking abortions out of state. Although the US Constitution generally prohibits restrictions on interstate travel and commerce, and such restrictions might in any case appear difficult to enforce, this area of constitutional law is not completely clear. There already exist examples of states (such as China and Poland) tracking data on gynaecology and pregnancies to determine if women are breaking the law, and in 2019, Missouri’s state health director testified that his department had assembled spreadsheet data on Planned Parenthood patients’ last menstrual periods, apparently to identify if those patients had experienced failed abortions.
Further, those seeking medication rather than surgical abortion may also find their actions curtailed. In 2020, abortion pills accounted for the majority of abortions in the US, an increase prompted partly by the pandemic and a desire to avoid in-person contact. However, although FDA regulations were relaxed during Covid, it is already a felony to provide abortion pills through the mail in about 19 states, such as Texas, where it is punishable with a $10,000 fine and custodial sentence.
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The ferocity of the Alito opinion also raises the question of whether other constitutional rights to personal autonomy are at risk. He stresses that Roe asserts a right not enumerated in the constitution, nor historically recognised as a constitutional liberty. Following this reasoning, other Supreme Court decisions protecting basic aspects of privacy and bodily autonomy appear vulnerable. It took until 1965, in Griswold v Connecticut (the decision on which much of the reasoning in Roe was based) for the court to hold that the constitution protects a right to buy and use contraceptives. The right to consensual same-sex relations was only recognised in 2003, in Lawrence v Texas, and the right to marry someone of the same sex only recognised in 2015, in Obergefell v Hodges. It seems likely there will be an attempt to apply the logic of Alito’s reasoning to these precedents as well.
But, argues Alito, abortion is different and distinct from other unenumerated rights the court has acknowledged, because it protects foetal life, or what the Mississippi law calls “the unborn human being.” But in stressing this distinctness, the opinion seems to open the door to a claim that the constitution recognises the personhood of the unborn. And such a claim could lead to the conclusion that abortion is illegal in all states. As the Washington Post reported on Monday, anti-abortion groups and their congressional allies are already planning for a nationwide abortion ban if Republicans retake power. Harvard’s Laurence Tribe writes that “Some readers of the Alito opinion assume that the legal regime it inaugurates will at least leave states free to protect abortion rights. Not so. Not a word of the opinion, and nothing in its reasoning, limits the ability of Congress to enact a law banning abortion nationwide, invoking the supremacy clause [in the US constitution, giving precedence to federal law]to override state laws more respectful of the rights of women.” The Democrats might try to pre-empt that by passing a Congressional law legalising abortion, but at present they do not have the votes to achieve this and in any case, such a law might now be vulnerable to being struck down by the Supreme Court. Only a constitutional amendment could provide safe protection, and such an amendment would be well-nigh impossible, because reaching the required majoritywould require co-operation from states which would never assent to it.
In practice, radically different regimes will operate, with some states banning abortion, even out of state, while others, such as Connecticut, take further steps to protect the right, and shelter patients and abortion providers from any extraterritorial assertions of jurisdiction. Such potential conflict recalls the US pre-civil war, when southern states asserted extraterritorial jurisdiction over fugitive slaves, and the 1850 Fugitive Slave Act made it a federal crime to aid escaped slaves, even in non-slave states. And indeed forced childbirth has been compared to slavery. The future landscape begins to resemble the Gilead of Margaret Atwood’s The Handmaid’s Tale—a work that has unsurprisingly been trending on social media recently and whose aptness is only strengthened by the Alito opinion’s reference to “the domestic supply of infants”—to the demand for adoption as a reason for Roe to be overturned.
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Alito insisted that reversing Roe merely returns the issue of abortion to the states to decide. But that will not settle this tortuous issue—on the contrary, leaving the states to decide will exacerbate already polarised approaches, promoting a war of state against state. There is no compelling democratic case for permitting each state to decide. Democracy is a fiction in many of them, where electoral districts have been gerrymandered, voter suppression has taken place and civil rights protections such as the 1965 Voting Rights Act, which required federal pre-clearance for state amendments to voting rules, has been eviscerated by the Supreme Court itself (in the 2013 Shelby County v Holder case).
For all that Roe has been criticised, it is in fact one of the court’s best-known and most popular decisions. As Atwood has written, “Nobody likes abortion, even when safe and legal… But nobody likes women bleeding to death on the bathroom floor from illegal abortions either.” Polls have consistently shown Roe has majority support. And yet the court has speedily gone to work to overturn it.
It is quite clear that interpretations of the constitution change as the political views of the justices change
Indeed, the Supreme Court need not have taken the Dobbs appeal at all, given that the (conservative) Mississippi appeals court had already found the state law unconstitutional and upheld Roe. The fact that it did surely indicates that the Supreme Court was considering the status of Roe anyway. It could have found the Mississippi law constitutional in Dobbs without overturning Roe completely (thus preserving a constitutional right to abortion), given that the Gestational Age Act would have prohibited most abortions only after 15 weeks. (Such a result had already been feared by many). But the Alito opinion goes much further, illustrating the confidence of the court in making controversial decisions, taking the opportunity to overturn Roe even when the facts of the case did not require it.
This is in spite of conservative justices’ acknowledgement of Roe as a precedent at their confirmation hearings. And in spite of protestations that the justices are not politicised and are simply interpreting the law, it is quite clear that interpretations of the constitution change as the political views of the justices change. Something perceived as a strong precedent in 1973 and 1992 may no longer stand.
The supermajority of six conservative justices on the court was achieved by the inauguration of three judges appointed under former President Trump—who lost the popular vote—and confirmed by a Senate representing a minority of Americans. One might also blame Mitch McConnell, Senate leader under Trump, who refused to proceed with Obama’s nomination of Merrick Garland 10 months before the 2016 presidential election but pressed ahead with Amy Coney Barrett’s confirmation a few days before the 2020 election, which Trump lost. One of Trump’s main claims in the 2016 campaign was that, if elected, he would appoint justices to overturn Roe. In this light, the court’s insistence that it is only applying the law look somewhat shallow. What future then for the court’s legitimacy?
But lest we reserve all concern and blame for the system across the Atlantic, is abortion any more protected here? In the UK, we have the Abortion Act 1967, passed by an Act of Parliament. No act of parliament is safe from repeal (even by only a bare majority) due to the doctrine of parliamentary sovereignty. No right is capable of constitutional entrenchment in the UK. Parliament could repeal the Abortion Act tomorrow if it wished. Alternatively, the Abortion Act could be undermined by endless restrictions, conditions and a lack of funding, a technique attempted by US states since Roe. The US and UK have very different constitutional systems. But both allow power to triumph, however carefully crafted the law.
