WASHINGTON (CN) — Where most court watchers saw a reckoning to come when the Supreme Court took up the question of overruling Roe v. Wade, a leaked draft of the conservative-supermajority ruling shows the justices not only shattering the right to abortion but possibly changing the landscape altogether.
“The issue with the wording of the draft is that it's so strong on these issues that it calls into question a variety of cases that have been decided using similar reasoning,” Maya Sen, a professor at the Harvard Kennedy School, said in an interview. “This idea of substantive due process or rights that are not specifically enumerated constitution but are nonetheless protected because they're kind of part of the social fabric and the social contract.”
Sen spoke to Courthouse News after Politico’s publication Monday night of a draft opinion leaked to the press that the shows the court has voted in Dobbs v. Jackson Women’s Health Organization to overrule almost 50 years of precedent and strike down the federal right to abortion. Chief Justice John Roberts confirmed the authenticity of the draft opinion on Tuesday morning but stressed it did not represent a final decision by the court. Roberts also launched an investigation into the leak.
But while the 98-page draft does not represent an official ruling of the court, it does give the public the most comprehensive look yet at what could be one of the most consequential rulings of the term. Written by Justice Samuel Alito, the draft represents a maximalist view on overruling Roe and curbing abortion rights.
Without mincing words, Alito wrote that “Roe was egregiously wrong from the start,” and “we hold that Roe and Casey must be overruled.”
President Joe Biden told reporters he thought the draft opinion represents a “radical decision” and reflects a “fundamental shift in American jurisprudence” that would threaten other basic rights.
Roberts had suggested during December oral arguments an alternative outcome to overruling Roe: namely, that the court limit the right to abortion without completely overturning it. The draft opinion suggests the other conservative justices were not swayed by this more moderate approach.
“What is so shocking about this is that there are a range of possible outcomes from kind of undermining Roe slightly to kind of death by 1,000 paper cuts to just flat out overruling Roe as precedent … the court is signaling that it's going to take a no prisoners approach to overruling Roe,” Sen said in a phone call. “I think that is what is the most surprising to court observers about this. … It's not surprising but nonetheless shocking.”
Reporting from Politico claims that Alito’s opinion was joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, suggesting the ruling could be 5-4. Court watchers say a divided ruling with the chief justice in the minority points to the extreme nature of the ruling.
“Imagine you're overturning a half a century [of precedent] with a bare majority, with the chief justice in the minority, that's shocking,” said Lawrence Gostin, director of the World Health Organization Collaborating Center on National & Global Health Law and faculty director of the O’Neill Institute for National and Global Health Law and Georgetown Law.
Alito writes in the draft that the right to abortion is neither explicitly referenced in the Constitution nor implicitly protected by the due process clause of the 14th Amendment. Courts can create unenumerated rights — rights not explicitly stated in the constitution — through substantive due process. Alito’s reasoning here for overruling Roe confirms the worst fears of some rights advocates who worried unraveling Roe would lead to other rights becoming vulnerable.
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