SCOTUS leaked abortion opinion is rooted in a time women had no rights

Correction: An earlier version of this piece contained an incorrect date for the ratification of the 14th Amendment. The error has been corrected.

The country is reeling from Monday night’s bombshell leak: the Supreme Court is set to overturn abortion rights. Politico is reporting it obtained the Supreme Court majority’s draft opinion in Dobbs v. Jackson Women’s Health Organization, involving a challenge to Mississippi’s 15-week ban on abortion. The Mississippi law clashes with the landmark cases Roe v. Wade and Planned Parenthood v. Casey, which together protect pregnancies and abortion access from government interference until the 24-week gestation mark, or “viability.”

On the political right, outrage around the unusual leak of a draft opinion abounds today. On the political left, folks are devastated at the substance of the draft opinion, which appears to obliterate a recognized individual constitutional right for the first time in American history. Assuming the draft will become law in some form, here are a few themes to bear in mind as the debate over Dobbs and the future of constitutional rights in America rages:

1.      The leak, although highly unusual and institutionally fraught for the court, is not without precedent. University of Georgia Professor Jonathan Peter notes that the result in Roe itself was leaked in advance before the decision was announced. Leaks were so common in the 1970s that then-Chief Justice Burger had to order all clerks to stop talking to reporters. 

That said, this court is fighting for its legitimacy these days. The leak is not helpful in this regard — but its damage pales in comparison to what the draft ruling does to the court’s reputation as a neutral umpire of facts and law. Justice Samuel Alito even opens the draft opinion with a statement that abortion “presents a profound moral issue.” Turning the clock back just a few weeks, it’s hard to get too upset about this procedural problem of a leak when the court has yet to publicly address Justice Clarence Thomas’s failures to recuse himself from three election-related cases, although his wife Virginia “Ginni” Thomas urged the White House to disrupt President Joe Biden’s valid electoral win and transfer of power.

2.      The decision to toss out Roe wholesale is hardly a surprise, given the court’s failure to enforce Roe in Texas when that state outlawed abortion after six-weeks of pregnancy alongside a bounty-hunter enforcement provision. In this case, a majority of the court snubbed a judicial norm to temporarily halt laws, until they’ve issued a ruling, that appear unlawful on their face (check) if there was immediate harm to individuals, here women (check), and if the public interest would be served by halting the law (check, as the bounty hunter law was unprecedented and legally untested).

The “shadow docket” decision in Texas’ Whole Women’s Health v. Jackson, issued without full briefing, oral argument or explanation, was yet another nail in the coffin of the court’s legitimacy as a non-ideological institution that adheres to the rule of law. But because Roe was effectively reversed in Texas back in December, the Dobbs draft majority opinion on Mississippi’s law should surprise no one — not to mention former President Donald Trump, who vowed to appoint Supreme Court justices who met one criterion: a willingness to end abortion rights. He followed through on that promise.

3.      When this opinion is officially issued this summer, access to safe abortions will become restricted across the country. According to Alito, 26 states expressly asked the court to overrule Roe. Last month, Florida’s Republican Gov. Ron DeSantis signed into law a 15-week ban; Kentucky is pushing a similar law. The Oklahoma legislature is pressing a six-week ban that would apply to women who cross state borders to obtain an abortion (targeting women from neighboring Texas), not just those seeking care within the state. Restrictive abortion laws have also passed in three additional states — Arizona, Idaho and Wyoming. In West Virginia, a ban already passed at least one chamber of the state legislature.

4.      Low-income women who lack the means to travel to a state where they can obtain the time-sensitive procedure will be hit the hardest. According to the Brookings Institution, low-income women are over five times more likely than affluent women to have an unplanned pregnancy. Women living at or under the federal poverty level (that is, single households earning $11,200 per year or less) are twice as likely not to use contraception, three times more likely to become pregnant and five times more likely to give birth.

The cost of an abortion ranges from $75 to $2,500, with the price tag rising depending on a state’s peculiar abortion requirements, such as pre-procedure counseling or a waiting period. Some states don’t allow Medicaid benefits to go toward abortion treatment.

In short, nearly 75 percent of women who obtain abortions are low-income; nearly half live below the poverty line. The Supreme Court does not recognize poverty as a relevant consideration when it comes to constitutional guarantees.

Alito’s breezy answer to these women’s plight — “seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office” — is both cynical and callous.

5.      For purposes of future case law under the concept of substantive due process, which undergirds Roe, Alito’s reasoning boils down to two factors: That there is no express right to abortion in the actual Constitution and that, in 1868 when the 14th Amendment’s Due Process Clause was ratified, there weren’t widespread legal rights to abortion, either.

His favored test for recognizing rights that aren’t in the actual text appears to be whether a right is “deeply rooted in the Nation’s history and traditions.” This language isn’t in the Constitution either, mind you, and if the proper constitutional standard really involves going back in a time machine to 1791, America is in for a shock. Back then, women couldn’t enter into contracts, they couldn’t vote, they couldn’t own property, they had no rights to their own children in divorce and they weren’t legally protected from rape by their spouses. 

There are numerous other “unenumerated rights” out there that Americans have come to rely upon, but that also fail Alito’s first test, and possibly the second. They include the right to decide on an education for one’s own children, the right to marry someone of a different race or the same sex or while in prison, the right not to be sterilized without consent, the right to reside with relatives, the right not to undergo involuntary surgery, and the right not to be forcibly administered drugs. Alito acknowledges these links, but blithely waves them off on the rationale that abortion uniquely involves “potential life” — another vague concept that has no grounding in the Constitution itself.

If this scares you, it should. And that fear is not just for Democrats or abortion rights proponents or people of child-bearing age. It’s for anyone who wants a government comprised of individuals who are accountable to the people, not just to themselves. Unfortunately, the greatest threat to that ideal might now come in the form of five unelected individuals in black robes.

Kimberly Wehle is a professor at the University of Baltimore School of Law and author of “How to Read the Constitution — and Why,” as well as “What You Need to Know About Voting — and Why” and “How to Think Like a Lawyer – and Why.” Follow her on Twitter: @kimwehle