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Crosshairs on Roe v. Wade could usher demise of other rights

The Supreme Court was all but expected to undermine abortion rights this term but the radical approach used in its draft opinion still shocked some.

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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Also seeing no sound basis for abortion rights in precedent, Alito cites Casey as relying on Loving v. Virginia, the right to marry a person of a different race; Griswold v. Connecticut, the right to obtain contraceptives; Lawrence v. Texas, the criminalization of anti-sodomy laws; and Obergfell v. Hodges, the right to same-sex marriage. Alito claims, however, that abortion can’t be justified through these broader appeals to autonomy. 

“Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like,” Alito wrote. “None of these rights has any claim to being deeply rooted in history.” 

Experts say the conservative majority could be setting the stage for future challenges to rights based on the same reasoning used to overturn Roe

“This opinion read to me as one that absolutely lies the foundation for turning to the next set of rights that they want to take up, that the conservative supermajority has had on their wish list for a while,” Lindsay Langholz, director of policy and program at the American Constitution Society, said in a phone call. “So you saw in the opinion explicitly referencing the legal underpinnings of Obergefell and Lawrence and even Loving. It goes after unenumerated rights, the right to privacy, and really lays the foundation for the court should it choose to take up those fights in future cases.” 

Alito tries to distinguish Roe and Casey from the other rights mentioned because Roe and Casey involve decisions that “destroy” the life of an “unborn human being.” He said that the court’s ruling would not undermine them, but experts disagree. 

“The draft opinion does say, listen, we're not going to go after anything but abortion, this is a different thing,” Langholz said. “But it takes great pains to weaken the legal foundations of these other rights, and it wouldn't do so without an eye towards the future and how this opinion could be used outside of the abortion context.”

There are currently no direct challenges to the unenumerated rights mentioned by Alito, but the court’s ruling could encourage activists to take a more aggressive approach if they think they’re more likely to succeed within the reasoning used to overturn Roe

“Right now we're not in a situation where there are direct challenges to those things,” Sen said, ”but if the opinion were handed down using this language, I think that would really embolden activists on the far right to challenge Obergefell and Griswold and cases that have relied on that kind of jurisprudence.”

Court watchers said Alito entertains language that is friendly to the idea of fetal personhood rights. Anti-abortion activists have suggested that fetuses be recognized with all the rights accorded by the 14th Amendment, which would lead to the strongest form of abortion restrictions that would not even allow for abortions to save the life of the mother. 

“That would be very, very, very expansive and a very different tack in reproductive rights jurisprudence because, if the court moves in that direction more firmly — and I think there are undertones of that in Alito’s opinion — if the court moves in that direction, then that would inch toward blue states not even being able to provide abortion services,” Sen said. 

Alito also seems to suggest the idea of a nationwide criminalization ban on abortion. 

“He goes to great pains to explain just how many states have criminalized abortion before Roe was decided, and, really, he seems to see Roe as changing that tide, and, to me, seemed to be opening the door towards a nationwide ban,” Langholz said.

It is unprecedented to see a draft opinion before the official ruling is released so it is unclear how much the final decision could change from this version. If the majority followed this opinion and overturned Roe, an analysis from the Guttmacher Institute estimates that 26 states would likely ban abortion.  

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