The shocking leak of a draft Supreme Court opinion confirms what everyone expected: Roe v. Wade is about to be overruled. The Court prides itself on its extreme secrecy and even revelations about internal deliberations after the release of opinions are relatively rare. It is unprecedented for someone at the Court to give the press a copy of a draft opinion.
Of course, it is possible that the result could change between now and when the Court hands down its decision. In fact, in 1992, initially five justices voted in Planned Parenthood v. Casey to overrule Roe v. Wade, only for Justice Anthony Kennedy to change his mind and join a majority to reaffirm the right to abortion. But given the composition of the current Court it seems highly unlikely that Roe will survive. The oral arguments on December 1 left no doubt that there are five conservative justices ready to overrule the 49 year-old precedent: Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett.
Now, we need to begin contemplating a world without a constitutional right to abortion and thus a return to the time before Roe when abortion was illegal in most states. The effect of overruling Roe, as Justice Alito’s draft opinion says, is to leave the issue of abortion to the political process. For now, it will mean that each state can decide whether to allow abortions or whether to prohibit some or all abortions. It is expected that over half the states will prohibit all or virtually all abortions.
Women in these states who want abortions and have money will travel to places where abortion is legal. But poor women and teenagers again will face the cruel choice between an unsafe abortion or an unwanted child.
The implications for the law of overruling Roe will be enormous. Justice Alito’s draft opinion for the Court says that Roe was “egregiously wrong” because it protects a right that was not included in the text of the Constitution, was not protected by the original meaning of the Constitution, and was not traditionally safeguarded as a constitutional right.
But by that reasoning, countless other Supreme Court decisions protecting basic aspects of privacy and autonomy were wrongly decided as well. For example, it was not until 1965, in Griswold v. Connecticut, that the Court held that the Constitution protects a right to purchase and use contraceptives. It, too, is not a right in the text of the Constitution or contemplated when the document was ratified or that was historically protected. I expect that after Roe is overruled some states will quickly pass laws prohibiting types of contraceptives that act after conception, like the IUD and the morning-after-pill. Under Justice Alito’s reasoning, those laws too would be constitutional.
Or consider the right to marry. It wasn’t until 1967, in Loving v. Virginia, and 2015, in Obergefell v. Hodges, that the Court protected a constitutional right to marry striking down laws prohibiting interracial marriage in the former case and laws forbidding same-sex marriage in the latter. But this right cannot be found in the text, the original meaning, or tradition.
Likewise, the Court has protected the right to procreate, the right to custody of one’s children, the right to keep the family together, the right of parents to control the upbringing of their children, the right of competent adults to refuse medical care, and the right of consenting adults to engage in same-sex sexual activity under the liberty of the due process clause. These rights, too, cannot be justified under the Court’s approach in Justice Alito’s draft opinion.
Simply put, the Court’s pulling out the thread of abortion rights threatens to unravel a fabric of rights that has been protected for decades. These are fundamental aspects of liberty that warrant constitutional protection.
The Court’s overruling Roe is not going to end the debate or the intense political controversy over abortion. Quite the contrary, it will intensify it as it will become the dominant issue in countless elections for Congress, for state legislatures, for city councils, and for judgeships.
Throughout American history, the Court has celebrated the importance of following precedent because it provides predictability and stability in the law. From Justice Alito’s opinion it is clear that five justices are about to overrule Roe because they disagree with it. The implications for the future of constitutional law, and for the Court’s legitimacy, are potentially enormous.
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