Precedent Unraveling: How the Landmark Roe v. Wade Decision Could be No More
Source for Photo: PBS
On Monday evening, May 2, 2022, POLITICO shocked the world when it leaked a draft written by Justice Samuel Alito that indicated the Supreme Court was ready to overturn Roe v. Wade (1973), the landmark decision that guaranteed federal protections for abortions. Many questioned the draft’s legitimacy, but the next morning Chief Justice John Roberts confirmed its authenticity. The decision comes after the Court heard oral arguments on Dobbs v. Jackson Women’s Health Organization, a case dealing with a Mississippi law that prevents abortions after 15 weeks. To understand the weight of this decision, let’s unpack everything.
What do we know?
The Court has confirmed the draft to have been leaked with the draft being dated to February 10, 2022; it is one of the first drafts written by Justice Alito and was circulated throughout the Court for review by the concurring justices. Justice Alito wrote the draft following the Dobbs v. Jackson Women’s Health Organization oral arguments in December 2021. Someone close to the Court stated that following the justices all voted to overturn Roe: Samuel Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. The leaked draft opinion calls for the overturning of Roe; however, none of the concurring justices signed the draft. It is likely Thomas and Gorsuch will sign Alito’s draft but unknown if Barrett and Kavanaugh will sign or wait for Chief Justice John Roberts’ opinion.
This is a draft; it is not the final opinion of the Court. However, it is unlikely the justices in the majority will change their vote and we can expect to see the overturning of Roe. It is also expected that Democrat-appointed Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor will be writing multiple dissents – it is still unclear how Chief Justice Roberts will vote. Roberts has called the leak “absolutely appalling” and says it will not impede Court proceedings. He has also ordered the Marshal of the Court to open an investigation into the leak and states “this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed”.
Why was it leaked?
It is unclear what the motive behind leaking the draft was. This leak is very unexpected given that the Court is notoriously tight-lipped about its proceedings. Nothing of this magnitude has ever been leaked from the Court and there are a few theories, some blaming the liberal side of the Court and others blaming the conservative side.
For liberals, one motive could have been to intimidate the justices into changing their vote before the official decision will be released later this year. Some conservatives believe liberals want to sway justices in the court of public opinion before the final decision. If this is true, it is unlikely to change the minds of the justices who for a while now have believed Roe to have been decided incorrectly. Another theory is that the leak was meant to give Democrats a boost in the upcoming midterm elections in November this year. Republicans are projected to gain more control of Congress due to voters’ disgruntlement over inflation. A leak exposing the overturning of a landmark decision protecting abortion rights could rally enough voters and change the narrative from improving the economy to focusing on social issues. The Court is known for its secrecy; however, a leak of this magnitude could be seen as warranted or as ABC Supreme Court Contributor Kate Shaw states, “Traditions… can be thrown out the window because extraordinary times call for extraordinary measures.” If someone on the liberal side is responsible, they could have seen this as a last-ditch effort to change the justices’ minds.
Along with theories favoring liberals, there are theories attributing conservatives to the leak. One theory is that conservatives might have leaked the draft to soften the blow of the final decision or to lock in justices. No doubt the overturning of Roe will have pushback, as we have already seen, but the leak could prepare people for the final decision so that the pushback is not severe. The other theory is to lock in justices. This is beneficial to conservatives because it would put pressure on justices to maintain their vote to overturn Roe and not have second thoughts. These are only theories, but it will be interesting to see what the Court’s investigation reveals.
What is Roe v. Wade?
Overturning Roe will no doubt affect change, but what exactly will change? To understand this, we need to understand the history of Roe v. Wade. Roe was decided 7-2 in 1973 after a Texan woman named Norma McCorvey wanted an abortion in 1969. At the time, Texas banned abortions with the only exception being to save the mother. McCorvey became known as ‘Jane Roe’ in court proceedings when she and her lawyers sued the Dallas County District Attorney, Henry Wade. The Texas Supreme Court ruled the abortion law unconstitutional, but the case was appealed to the U.S. Supreme Court. The Court, in a decision written by Justice Harry Blackmun, ruled that a woman’s right to an abortion was protected by the 14th Amendment. The 14th Amendment, among other things, guarantees a person’s “right to privacy” and is what the Court cited in their decision, despite neither the 14th Amendment nor the Constitution stating anything about pregnancy. The decision also divided pregnancy into trimesters and outlined the role of the state in each trimester: first trimester, solely a woman’s right; second trimester, government could regulate abortions but not outright ban them; third trimester, government could prohibit abortions.
Prior to the Roe decision, abortion had been illegal since the 19th Century and only four states had laws that legalized abortion; 16 states had limited exception and 30 banned it completely. Following the decision, anti-abortion groups arose and McCorvey eventually joined the anti-abortion movement. Since its decision, critics have attacked different aspects of the decision. Most of the criticism is that abortion, and pregnancy, are not listed in the Constitution. This is the case for many Republicans who are typically “contextualists” – a judicial philosophy that believes in interpreting the Constitution literally. Justice Alito believes the only time a right can be covered that is not explicitly stated in the Constitution is when it is “deeply rooted” in American tradition and believes abortion is not. Justice Alito writes that Roe was “egregiously wrong” because Roe argued that the 14th Amendment protected abortions but the decision never cited anywhere specific in the Constitution that protected the right. Other critics cite the case’s reasoning as being flawed, including Ruth Bader Ginsburg. Ginsburg said the Court “went too far” and allowed the Right-to-life movement to gain momentum. Justice Alito also writes that the reasoning was “exceptionally weak”.
Roe has preceded many cases involving abortion such as Planned Parenthood v. Casey (1992) that allowed states to make abortion restrictions as long as there was no “undue burden”; this subsequently affirmed Roe. It also provided a basis for Whole Women’s Health v. Hellerstedt (2016) that affirmed the ruling that states could not cause an “undue burden” on those seeking an abortion, such as limiting access to an abortion. Thus, overturning Roe will subsequently overturn these two cases as well.
Some concern is that Roe is nearly a 50-year precedent. However, Justice Alito cites the overwriting of Plessy v. Ferguson (1896), a long-held case that legalized segregation but was overturned. He argues that because a long-held precedent like Plessy was overturned, Roe can as well. Precedent is allowed to be overturned but is not very common. In Planned Parenthood v. Casey, Justices Souter, O’Connor, and Kennedy – all Republican-appointed – warned that the overturning of Roe would cause the Court to pay a “terrible price” due to its long presence and all voted to uphold Roe.
Justice Alito also makes an argument that Roe should be overturned due to the racial disparity created. He writes, “It is beyond dispute that Roe has had that demographic effect. A highly disproportionate percentage of aborted fetuses are black” claiming that some supporters of Roe want to “suppress the size of the African American population”. Although not his main opinion, it is still an argument to overturn the decision by citing eugenics. Some conservatives have attempted to link abortion to eugenics as an argument to overturn Roe.
What will overturning Roe look like?
If Roe is overturned, the right to an abortion will be returned to the states. This will not mean that abortion is illegal, just that there is not federal protection. However, this does mean that the decision will be put in the hands of elected officials. These officials can choose to legalize abortion in their given states, and it will be allowed. At the moment, 24 states have laws that ban or restrict abortion but are not enforced due to Roe. Additionally, 13 of these states have “trigger laws” that would immediately ban abortion if Roe were overturned. At least 16 states, including D.C., have laws to protect abortion despite the overturing of Roe.
Although controversial, returning the right to the states will return the right to the elected legislature; this is where it should be. This is because the 10th Amendment provides states with the right to create laws that are not specifically granted to the federal government nor specifically prohibited from states in the Constitution. Abortion is not mentioned in the Constitution nor is anything regarding pregnancy. Therefore, because it is not a right listed as a responsibility of the federal government, the right then becomes part of the state’s authority. Furthermore, Roe essentially circumvented the legislature to legalize abortion. We were all taught in civics class that the judiciary interprets laws, it does not create them, that responsibility lies with the legislature. States will be able to choose their abortion policies which will be created by elected officials, not judges. However, a post-Roe world will be interesting considering multiple polls before the 2020 election reported that between 61% and 69% of Americans supported Roe and between 24% and 28% want it to be overturned.
What can we expect to see in the future?
Although it is not totally clear what will happen, it will likely be messy. There are concerns that overturning Roe will cause other rights to be lost such as the right to contraception in Griswold v. Connecticut (1965) and potentially same-sex marriage in Obergefell v. Hodges (2015). Griswold was a precursor to Roe and Obergefell and like Roe, the decision never cited anything specific in the Constitution. Justice Alito promises no other rights will be affected saying, “We emphasize that our decision concerns the constitutional right to abortion and no other right”.
Chief Justice Roberts appears to be more hesitant on overturning Roe and more inclined to uphold the Mississippi law without overturning Roe. This is likely because Chief Justice Roberts is more concerned with the Court’s integrity than he is with overturning the decision. He likely fears overturning Roe will cause too much damage to the Court’s reputation. However, we will not know Roberts’ decision until this summer when the decision is likely to be officially released. Until then, the investigation into the leak will continue. It is also unclear what will happen to the person/people responsible but they could be charged with stealing federal property or sanctioned if a member of a state Bar.