The sensational leak of a draft decision by the US Supreme Court has raised the prospect of 50 years of abortion rights being overturned. Hayden Thorne, who studies the Supreme Court, analyses the draft and its implications.

On Tuesday afternoon (NZ Time), the Politico website broke the story that many legal commentators have been anticipating – the United States Supreme Court is planning to release a decision overturning Roe v. Wade (1973) and ending constitutional protection for the right to legal abortion.

Politico has also accessed a copy of Justice Samuel Alito’s draft opinion for the majority –  Alito, joined by Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, will vote to uphold a Mississippi abortion regulation statute and thereby undo 50 years of American legal development.

Politico report that Justices Sonia Sotomayor, Elena Kagan and Stephen Breyer are working on dissenting opinions, while there is no clarity over where Chief Justice John Roberts will fall. There is a lot to unpack, in the decision itself, the wording of the opinion, and the means by which this has become public.

The leaking of a complete opinion draft is unprecedented in the Court’s history. It suggests that there may be some deep, personal divisions – and larger political agendas at play.

The Opinion

Alito’s draft opinion holds that “Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision”. He continues that “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.”

With no constitutional right to safe abortion access, control over abortion will revert to state legislatures. In effect, access to abortion will become a postcode lottery – 26 states joined the case to urge the Court to overrule Roe, but many states will maintain liberal abortion access laws. The states who seek to restrict or remove access to abortion are predominantly Southern, drawing support in particular from the white, evangelical Christian roots of the Republican Party. The Court’s decision, while falling into line with increasingly right-wing conservative Republicans, actually flies in the face of national public opinion, which sits somewhere between 60 and 65 percent in favour of maintaining Roe.

Alito ends his opinion by outlining how the Court will address abortion regulation in the future, using something known as the rational basis test – in short, the Court will uphold any legislative restriction of abortion as long as the state can show a rational basis for thinking that the law will protect a legitimate state interest. With his next paragraph, he holds that “These legitimate interests include respect for and preservation of prenatal life at all stages of development.” It is hard to see any abortion restriction currently under discussion failing this test.

One suspects this is an opinion Alito has been waiting his whole career to write, and he did not hold back.

Chief Justice Roberts

Reading between the lines of the Politico report reveals a particularly interesting point concerning the Chief Justice. When the Supreme Court Justices meet to consider a case, they start generally with a vote. The vote begins with the Chief Justice and proceeds in order of seniority. Once votes are tallied, if the Chief Justice is in the majority, he either chooses to write the majority opinion, or assigns it to another Justice from the majority. If the Chief is not in the majority, the most senior Justice in that group holds the responsibility for assigning the opinion.

That the Chief has passed on the opinion – and indeed does not appear (at least at this point) to be in the majority is telling. Roberts has long held a deep concern for the Court’s institutional reputation. He knows that this will be seen as a thinly-veiled political statement by the Court’s conservative wing – and judging by the near-vitriol with which Alito has written, it would be no surprise if he wanted no part in it. There is no doubt that Roberts disagrees with abortion and has doubts about his constitutional validity. But he does respect the 50 years’ worth of judicial precedent that will be undone and will be deeply concerned about how his Court will be perceived by the public.

Critiquing Alito

Alito’s draft opinion is deeply problematic, for a wide range of reasons. While he is, to some extent, correct in his criticism of Roe (constitutional scholars largely agree that it was poorly drafted), this opinion is in places caustic, mocking, disrespectful, and hypocritical.

The most startling aspect of Alito’s opinion is the almost-messianic tone he takes in praise of, well, himself. In one part of the opinion, he notes that the Supreme Court does occasionally correct its own mistakes, citing the 1954 Brown v. Board of Education decision, which overturned educational segregation and kickstarted the Civil Rights movement, as an example. When he describes Roe v. Wade as “egregiously wrong”, he points to just one case for comparison: Plessy v. Ferguson (1896) – the case that held “separate but equal” facilities for black and white Americans were constitutionally valid. In short, the decision in Roe was on par with what is widely regarded as the worst decision in modern American history, and which contributed to a system of segregation which didn’t formally end until the 1960s and 70s and persists informally in many areas today. Alito’s opinion, by contrast, is elevated to the same status as Brown – one of the Court’s best decisions. On first reading, this comes across as distasteful, disrespectful, and downright wrong. Further reading did nothing to improve that impression… The harm done by Plessy is stark and obvious to all – yet Alito failed entirely to point to any instance of actual harm done by Roe outside of an abstract analysis of democratic process.

Roe v. Wade and subsequent cases which upheld its core principles rely on the Due Process Clause of the Fourteenth Amendment to argue that the Constitution protects individual rights beyond those that are stated specifically in the Bill of Rights. Alito’s analysis here finds, for a number of reasons, that abortion is not one of these unenumerated, protected, rights. His method of analysis, if applied to other areas of law, has potentially devastating consequences. His test would, for example, endanger the decisions in Lawrence v. Texas (2003) which found that criminal punishment for sodomy was unconstitutional; and Obergefell v. Hodges (2015) which gave constitutional protection to same sex marriage. Alito’s response? This decision only concerns abortion, and ‘abortion is different.’ This should provide absolutely no comfort to observers – Alito dissented in Obergefell, and his claim that abortion is somehow different is not explained, nor does it have any support in precedent.

Alito reserves special criticism for the submission made by the United States Solicitor-General – the legal officer charged with representing the interests of the federal government. He seems to take great pleasure in regularly refuting, criticising, even mocking the Solicitor-General’s arguments. This in itself is surprising – studies demonstrate that the Solicitor-General is comfortably the most successful advocate to appear regularly before the Court, winning in between two-thirds and three-quarters of all cases in which they appear. The Court usually holds a great deal of respect for the federal government’s submissions – a point that Alito seems to have forgotten to consider. He is also heavily critical of submissions made by the American Historical Association, the Organization of American Historians, and the American Civil Liberties Union.

Among the ironies in Alito’s opinion is his discussion of how women now have much better access to medical care and other services like adoption have, rendering the argument for abortion less persuasive. He notes that “the costs of medical care associated with pregnancy are covered by insurance or government assistance”. Besides the thoroughly distasteful idea of a white, upper class, 72-year-old man claiming to understand the burden of an unwanted pregnancy, Alito’s point relies entirely on the provisions of the Affordable Care Act (Obamacare) – the same legislation he repeatedly and aggressively sought to hold unconstitutional.

Finally, Alito argues that allowing states to regulate abortion will solve the problems of Roe which he argued caused an unclear application of the law. Roe has issues in application, to be sure – but are those issues worse than the prospect of 50 different states, operating 50 different systems with no unifying consistency? Hardly. As Justice Sandra Day O’Connor held in Casey – “An entire generation has come of age free to assume Roe‘s concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions; no erosion of principle going to liberty or personal autonomy has left Roe‘s central holding a doctrinal remnant.”

What Next?

Research has long made it clear that those who will suffer from these changes are overwhelmingly the poor, and in particular people of colour. Access to abortion will become a postcode lottery, and those who miss out will be the people who can least afford to. Women will lose control over decisions relating to their own autonomy, based purely on where they live.

In a broader sense, this decision will only deepen the political divide which is gripping America. The cultural and social divide that already exists between Red and Blue states will widen.

The decision may also have profound political consequences. If the opinion pollsters have it right, this decision will be unpopular for a majority of the population. It could well be the issue that galvanises a wavering Democratic Party and helps it to retain control in the crucial midterm elections later in the year. It will certainly not resolve the question, legally or politically, whatever Alito would have you believe.

Wherever the political position lands, however – it must always remember that decisions like this can, and will, have a very real, very human cost.

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