What the Supreme Court's leaked draft means (and doesn't) for abortion

Opinion: By stressing that abortion is different, a tentative court majority indicates an intent to go no further regarding court-created rights.

Robert Robb
Arizona Republic

I was struck by the headline on a recent letter to the editor in The Arizona Republic: “New justices on the High Court lead to minority rule in America.”

Justice Samuel Alito’s leaked draft opinion on abortion doesn’t hold that the Constitution protects the unborn in the womb and states cannot authorize the termination of a pregnancy through an abortion. It doesn’t limit in any way what states can authorize in terms of allowing an abortion at any stage of pregnancy.

Instead, it holds that the Constitution is silent about abortion. Meaning that the decisions are to be made in the democratic processes in which a majority does, in fact, rule.

I'm pro-life. It's a biological question

To declare myself, I am pro-life. I have been since I read an essay many moons ago by Walker Percy, a novelist and physician.

Percy wrote that the question of when life begins isn’t a theological one. Or a philosophical one. Or a legal or political one.

It was a biological question, with a clear biological answer: When a sperm fertilizes an egg, a new, genetically distinct entity is created. It may be wholly dependent at inception, but that doesn’t change its essence.

Roe and Casey relied on dubious arguments

However, one doesn’t have to be pro-life to recognize how preposterous Roe was as a matter of constitutional law. The Constitution doesn’t divide a pregnancy into trimesters with shifting authority for a state to regulate its termination in neat three-month intervals.

The court moved on from this with Casey. Under Casey, states couldn’t place an “undue burden” on abortions prior to viability outside the womb. This is not as preposterous, but also finds no true grounding in the Constitution.

This has produced a welter of litigation regarding what constitutes an “undue burden,” with conflicting decisions by judges. And questions about viability as a hard dividing line, as science pushes the frontiers of prenatal life and experiences.

Polls about abortion are irrelevant to the constitutional issues before the court, but instructive as to where the court’s intervention has left the country. In general, the polls indicate that a majority wants abortion to be legal, but subject to greater restrictions and conditions than the courts have allowed under Casey. Interestingly, that’s where abortion policy has settled in Europe, where the decisions were made through democratic processes, not by judges.

If the Alito draft opinion holds, I think the court will have taken the correct action.

Pro-choice advocates were right about 2 things

Protesters rally for abortion rights at the United States Federal Courthouse on Tuesday May 3, 2022.   Hundreds of protesters marched from the Capitol to the courthouse following the leak of a draft majority opinion for the Supreme Court case that would overturn Roe v. Wade.

However, I think there are two concessions due to pro-choice advocates and critics of the draft.

First, I think it is fair to remonstrate that the recently confirmed conservative justices – Neil Gorsuch, Brett Kavanaugh and Amy Coney Bennett – either cultivated or allowed to be inferred a misleading view of the likelihood of Roe and Casey being overturned.

Judges shouldn’t discuss or reveal how they will decide future cases. And none of them flatly said that they wouldn’t overturn Roe and Casey. But, in response to questions about them, the strong stress on their status as precedents of long-standing created the impression that overturning them was unlikely.

Second, Alito’s attempt in his draft to distinguish between these abortion cases and others in which the court created rights not explicitly found in the Constitution, such as gay marriage, is not entirely convincing.

Casey settled on the liberty due process provision of the 14th Amendment as the location of a constitutional right to abortion. Alito’s draft makes much of the fact that abortion was illegal in nearly all states at the time the 14th Amendment was ratified. The same could be said about gay marriage, irrespective of the constitutional provision claimed to establish the constitutional right.

How the draft says abortion is different

There are certain tenets regarding overturning precedents in Alito’s draft that do distinguish Roe and Casey from the gay marriage decision and others argued to be at risk.

An unstated but implied tenet is acceptance. The gay marriage decision and the others have been accepted by the body politic in ways that Roe and Casey clearly were not.

A stated tenet is workability. The same certificate of marriage for a gay couple as would be issued to a heterosexual one is straightforward, while what constitutes an “undue burden” on obtaining an abortion continues to be litigated three decades after Casey was issued.

In the end, overturning precedent is a subjective judgment of a majority of the court. The lengths to which the Alito draft goes to say that abortion is different and overturning Roe and Casey has no implication for other precedents indicates that this court has no intention or appetite to go any further regarding court-created rights with questionable constitutional grounding.

If a majority of justices say that abortion is different, then, as a practical legal matter, it is different.

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