Justice Alito’s Leaked Opinion Foretells an End to Roe v. Wade

Last night, a draft U.S. Supreme Court majority opinion regarding abortion rights was leaked to the general public. The opinion relates to the case of Dobbs v. Jackson Women’s Health Organization, a Mississippi case that places a ban on abortions performed after the 15th week of pregnancy, which was argued before the Court on December 1. This draft majority opinion, written by conservative Justice Samuel Alito, indicates that the Supreme Court is likely to fully overturn Roe v. Wade in the coming months, eliminating Americans’ constitutional right to abortion. Without this nearly 50-year legal precedent in place, many states will immediately roll back abortion rights, severely limiting reproductive justice throughout the nation and robbing millions of bodily autonomy.  

Losing a Constitutional Right — If Roe is overturned, Americans will lose a fundamental constitutional right — something that has never happened before in the United States. The harmful repercussions of this possible ruling will affect a significant share of the population and have harsh impacts far beyond controlling people’s reproductive lives. 

Justice Alito’s draft was circulated among his fellow justices in early February. Since then, Justices Elena Kagan, Sonia Sotomayor, and Stephen Breyer, the three liberal members of the court likely have been penning strong dissents. Whether those justices can persuade the conservatives to modify this extreme and dangerous opinion is doubtful. A national and pro-longed public uproar might be more effective; a majority of Americans support abortion rights. 

Living the Past – In the draft opinion, Alito writes that Roe v. Wade was “egregiously wrong from the start.” Alito supports this claim by asserting that abortion should not be constitutionally protected because it is not “rooted in the Nation’s history and traditions.” This is an expected charge from those who ascribe to the “originalist” interpretation of the Constitution and is absurd on its face. At the time of the writing of the Constitution, women had no rights and were not recognized as full citizens. Abortion, in many cases, resulted in serious injury and death due to the lack of modern medical knowledge and sanitary conditions. Alito has attached to the opinion summaries of all the laws prohibiting abortion adopted by states in the 19th century — certainly no justification for ending Roe in the 21st century. But perhaps the justice would like to return to that century where white men had all the power and women and people color just suffered and died.  

Originalists have tried to blunt progress toward a more equal America by claiming that when deciding constitutional challenges, one should consult what was said and written – and perhaps ‘thought’ — at the time of the Constitution’s writing. Simply put, there is no merit in this philosophy which does not recognize a world that is radically different from the 18th century. Alito’s implication that people should not have bodily autonomy or access to abortion care because people did not in our early history is lamentable. 

‘Privacy’ is at Serious Risk – What is truly egregious about the leaked opinion is that the conservative justices attack the concept of privacy – which has been found in numerous important Supreme Court decisions to rest in the 1st, 3rd, 9th, and 14th Amendments of the Constitution. Because there is no ‘privacy’ concern to protect abortion rights, there is no way to anchor abortion rights in the Constitution, Alito’s majority opinion alleges.  The document says that their discounting of a constitutional home for privacy as it relates to abortion should not be applied anywhere else. Court watchers counter, “Don’t you believe it.”  If privacy goes down, access to contraception is next in line, followed by marriage equality and other important rights and protections we cherish.  

Roberts’ Court Dismantling Rights – The Roberts Court over the past decade or so has been focused on dismantling rights, most notably, voting rights in Shelby County v. Holder’s evisceration of the 1965 Voting Rights Act and unleashing billions of dollars in dark money to elect conservative lawmakers with the ruling in Citizens United v. Federal Election Commission. The horrible Burwell v. Hobby Lobby Stores ruling privileged the religious views of some—in this case, company owners — to deny access to insurance coverage for contraceptives for employees which the Affordable Care Act required. Upcoming soon, is the Court’s effort to finally kill off affirmative action programs which have been instrumental in helping many women and persons of color to advance their education and their careers. 

If Roe v. Wade is indeed overturned to leave abortion policy to the states, there could be at least 26 states banning abortion care. Several states still have unenforced abortion bans on the books that pre-date Roe v. Wade; these laws would be enforced immediately upon the overturning of Roe.  According to a tally on May 1st by The Washington Post, there are 12 states with unenforced bans – called trigger bans; another six such bans are pending legislative action in the same number of states. Five states recently passed 15-week bans, three of which are blocked by the courts. Fourteen have enacted or are considering Texas-style six-week vigilante-enforced bans, with two that are blocked.  Eight states have bans on the use of medication abortion currently pending; some blocked by litigation.  

States Protect Abortion Rights – Fifteen states have enacted the right to abortion in their state laws; eight states already have laws protecting the right to abortion but are considering further protections. Some states are creating abortion “sanctuaries” within their borders and are trying to pass laws that make it easier for people from anti-abortion states to travel to their in-state clinics. Most of these states intend to protect Roe in their statutes, but others are hoping to incorporate the right to abortion in their constitutions, according to the Post. 

With more than half of the states banning abortion, a significant proportion of the population would have less decision-making power over their reproductive lives.  Fifty-eight percent of women of reproductive age – 40 million women – live in states hostile to abortion rights, according to the Guttmacher Institute.  Overturning Roe v. Wade would especially harm low-income people who face the most significant barriers to reproductive health care services. Low-income women often lack the financial resources to seek out-of-state abortion care. As a result, many persons will seek unsafe abortion options, and many more will be forced to carry unwanted pregnancies to term without the financial ability to provide a child with a safe and nurturing upbringing.  The United States, the richest country in the world, has had for years abysmal maternal mortality statistics — similar to those from the poorest developing countries. It is Black, Latinx and Indigenous families who are most affected by the lack of access to affordable health care. As a nation, we are failing to protect the most vulnerable among us and will be generating much deeper poverty with abortion bans, mainly in southern and midwestern states where economies are struggling. 

Adopt the Women’s Health Protection Act – One sure way to counter an end to Roe v. Wade is for the U.S. Senate to pass the Women’s Health Protection Act (WHPA). This legislation would safeguard a person’s reproductive rights by establishing Roe v. Wade’s protections in federal statutes. WHPA has already been passed by the House, and it is vital that the Senate adopt it soon. The 60-vote requirement to pass legislation remains in the upper body. 

As we approach the expected announcement of the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization in June or July, we must keep working to protect abortion rights. To minimize the potential damage from the Supreme Court’s ruling, individual states must enact abortion protections. Even though many legislative sessions have already drawn to a close, it is essential that pro-choice advocates call their state legislators and urge them to establish comprehensive state-level abortion protections.  

Mobilize for the Mid-Terms – Finally, to secure the future of abortion access, pro-choice lawmakers must be elected to office at every level of government. In the upcoming mid-term elections, pro-choice advocates must mobilize voters to support and elect candidates who will champion reproductive justice and prioritize women’s rights. It is essential that Democrats retain and expand their majority in the U.S. House of Representatives and even more importantly, increase their majority in the U.S. Senate. Equally important are those kinds of wins at the state level.  Should conservatives take control of the House and Senate in Washington, they may attempt to pass legislation prohibiting abortion rights everywhere. 

By Nora Weiss, Government Relations Intern 

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