Abortion rights: Leaked opinion suggests US Supreme Court will overturn 50 years of precedent
Jennifer Venis
On 2 May, a draft majority opinion showing that the US Supreme Court intends to overturn 49 years of a constitutional right to abortion was leaked to the public.
The opinion on the case before the Court, Dobbs v Jackson Women’s Health Organization, reads: ‘The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision’.
It denies that abortion is protected by the right to privacy or by the Due Process Clause of the 14th Amendment, because ‘any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty”’.
With the intention of returning the decision on the right to abortion to state legislatures, the opinion dismisses arguments highlighting the importance of this right to women’s health and participation in democracy. ‘The effect of the abortion right on society and in particular on the lives of women’ is ‘hard for anyone – and in particular, for a court – to assess […]’, it claims.
But human rights law is clear on the answer. ‘A woman’s bodily autonomy is an inalienable right in international human rights law,’ says Mark Stephens CBE, Co-Chair of the IBA’s Human Rights Institute. ‘Denying access to health services that only women require, including abortion, is an example of gender-based discrimination, and can constitute gender-based violence, torture and/or cruel, inhuman and degrading treatment.’
‘If the legal right of millions of women in the US to have a safe abortion is reversed, that would be contrary to settled law and result in a direct assault on the legal rights, dignity and lives of women’, he adds.
The Court’s Chief Justice John Roberts confirmed the document’s authenticity the day after the leak but emphasised that the draft ‘does not represent a decision by the Court or the final position of any member’ on the case, in which Mississippi has asked the Court to allow it to ban abortion after 15 weeks’ pregnancy.
The final verdict in Dobbs is expected in June, and although justices’ votes could change, this opinion is reportedly backed by a 5-4 majority.
The 98-page draft opinion written by Justice Samuel Alito argues the two Supreme Court rulings underpinning the right to abortion pre-viability – before a foetus could survive outside the womb, around 24–26 weeks – must be ‘overruled’.
The 1973 ruling in Roe v Wade found that right through the constitutional right to privacy and created a trimester-based framework to block most restrictions on pre-viability abortion. Later, in Planned Parenthood v Casey in 1992, the Court partly affirmed Roe but reduced its limit on regulations to only require that they not impose ‘undue burden’ on pre-viability abortion access. The draft Dobbs opinion determines Roe to be ‘egregiously wrong from the start’, ‘exceptionally weak’ and ‘unfocused’, derides Casey’s ‘implausible’ claims and deems its ‘arbitrary’ test ‘unworkable’.
Akila Radhakrishnan is President of the Global Justice Center, which works globally to further reproductive rights and justice. She says the opinion ‘fervently’ rejects any recognition of gender-based rights, and ‘if a notion wasn’t deeply entrenched in the Constitution and in the minds of those who wrote it, there’s the idea that those are not legitimate rights anymore’.
Although the draft opinion denies that it could ‘be understood to cast doubt on precedents that do not concern abortion’, rights advocates fear it threatens a swathe of rights.
David Janovsky, Program Manager and an analyst for the Constitution Project of the Project on Government Oversight, says ‘there’s a notion that rights that have not been explicitly mentioned in the Constitution and Bill of Rights and that are not deeply rooted in the nation’s history are perhaps now up for grabs because of the reasoning articulated in this draft’.
He adds, ‘to the extent that the draft opinion indicates that those kinds of rollbacks are now on the table, that is very troubling’.
The draft’s final section creates a new standard for abortion regulation, enabling restrictions for ‘legitimate reasons’ and claiming courts cannot ‘substitute their social and economic beliefs for the judgment of legislative bodies’.
Laws regulating abortion would be entitled to a ‘strong presumption of validity’, sustained ‘if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests’, which include ‘respect for and preservation of prenatal life at all stages of development’.
If this opinion becomes the Court’s verdict, 26 states are certain or likely to ban abortion, according to Guttmacher Institute analysis. Twenty-one of these have ‘trigger’ laws or constitutional amendments enabling them to ban abortion almost immediately if Roe falls.
Even while Roe and Casey stand, state legislatures have introduced targeted regulations of abortion providers that force their closure, banned certain abortion procedures and required that providers and patients follow processes not backed by science. States like Texas and Oklahoma have avoided judicial scrutiny by introducing pre-viability bans enforced by civilians.
‘On thing to watch if Roe is overturned is the criminalization of abortion and where states go with that,’ says Matt Kaiser, Vice-Chair of the IBA Criminal Law Committee and a partner at KaiserDillon. ‘Broadly speaking there are two things to watch: whether states criminalize providing or facilitating an abortion and, separately, whether states criminalize receiving an abortion and what exceptions or defenses are available to a person who is being prosecuted for receiving an abortion.’
For Kaiser, it would be remarkable if a state were to make it a crime to receive any abortion, including to save the life of the mother or in cases of incest, ‘but we’ll have to see how aggressive states want to be,’ he says.