What is in the SCOTUS Leak? A Deep Dive into the Dobbs v. Jackson Draft Opinion

By Bryan Goodman, Political Director
Photo: Staff, Happy Medium

On the evening of Monday, May 2, 2022, Politico reported a leaked draft copy of a majority opinion in which the United States Supreme Court would overturn Roe v. Wade 410 U.S. 113 (1973) and Planned Parenthood v. Casey 505 U.S. 833 (1992). It was written by Justice Samuel Alito, and circulated to the other Justices of the Court on February 10, 2022. This decision would come in the case of Dobbs v. Jackson Women’s Health Organization, which heard oral arguments at the end of 2021. The state of Mississippi passed a law in 2018 prohibiting abortions after 15 weeks with minimal provisions (“Dobbs v. Jackson”). The health organization and its doctors promptly filed suit and a district court in Mississippi found “… that the state had not provided evidence that a fetus would be viable at 15 weeks, and Supreme Court precedent prohibits states from banning abortions prior to viability” (“Dobbs v. Jackson”). This district court ruling was affirmed by a federal appellate court and was then granted cert by the Supreme Court for the case to be heard. 

In the leaked opinion, Alito writes “We hold that Roe and Casey must be overruled” (5) and that “Roe was egregiously wrong from the start” (6). Alito continues on the same page by saying that the Fourteenth Amendment’s Due Process Clause does not implicitly protect abortion. This is in direct contrast to the opinion of the Court in its Roe decision that the Due Process Clause provides a right to privacy that includes abortion (“Roe v. Wade”). Alito follows this reversal with “That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty’” (5). Alito repeats this sentiment further in the draft, arguing “… a fundamental right must be ‘objectively, deeply rooted in this Nation’s history and tradition’” (13). It is quite interesting that Alito mentions that such rights to be protected by the Due Process Clause would have to be “‘deeply rooted in this Nation’s history and tradition’” (5) but does not provide examples of such cases. It is unclear whether or not Alito believes there are many such instances in which the Due Process Clause would provide such rights for individuals that are not explicitly protected.

There is a lot to unpack here, so let’s start with the implication that various rights which have been granted by the Court under the Due Process Clause of the Fourteenth Amendment will now be in danger of reversal if this opinion were to become official. Some of the landmark cases that could follow Roe and Casey to be overturned on these grounds include Obergefell v. Hodges 576 U.S. 644 (2015), which provided Due Process protections to same-sex couples looking to marry, and Lawrence v. Texas 539 U.S. 558 (2003), which deemed it a violation of the Due Process Clause for states to regulate intimate sexual conduct between same-sex couples. 

These encroachments upon the privacy rights of millions of Americans present a danger that would allow for the government to implement more restrictive laws on personal conduct that is not the business of the state. Opening the door to taking away rights that have previously been Court precedent will create a dangerous precedent that may become more frequent. There would be nothing to stop a state from re-introducing and enforcing anti-sodomy laws or laws that prohibit same-sex marriage, which would immediately be challenged in court. However, this challenge in court is exactly what the policymakers would be hoping for, as they know they would likely have their case heard before the Supreme Court and as a result of the precedent that the Dobbs decision would establish, the Court could then reverse previous decisions in cases such as Lawrence or Obergefell.

Further, into the opinion, Alito begins a discussion on the two different categories of rights that the Due Process Clause protects. The first of these categories is the first eight amendments of the Bill of Rights which the Court ruled apply to the states as well as the federal government. The second category that Alito talks about “…comprises a select list of fundamental rights that are not mentioned anywhere in the Constitution” (11). This statement is quite interesting in that Alito recognizes that there are rights that are not specifically mentioned in the Constitution but are still protected under the Due Process Clause of the Fourteenth Amendment. If there are such rights that are protected under the Due Process Clause, which rights does Alito think should remain protected by it? Which ones should go? There would be nothing stopping future Courts with different makeups from flip-flopping on what are rights protected by the Fourteenth Amendment and which ones are not. This would create a legal instability that would likely continue on for eternity unless the near-impossible task of ratifying a constitutional amendment is achieved to codify and secure a certain right.

However, the Fourteenth Amendment is not the only amendment in the Constitution that recognizes that there are other rights that individuals have that are not expressly spelled out within the founding document. The Ninth Amendment states “The enumeration in this Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” (U.S. Const. amend. 9). Unfortunately, any case law surrounding the Ninth Amendment is extremely limited. There have only been a select number of opinions or dissents in which the Ninth Amendment has been used as justification for unenumerated rights. Griswold v. Connecticut 381 U.S. 479 (1965) is the case that gives the Ninth Amendment the most life. In their majority opinion, the Court ruled that there are several amendments that provide rights to privacy in marital relations (“Griswold v Connecticut”). The amendments that they cite for this decision include the First, Third, Fourth, and Ninth (“Griswold v Connecticut”). There were also multiple concurrences written by Justices in the majority position which further strengthen the argument that these rights to privacy are found in both the Ninth Amendment and the Fourteenth Amendment, and more specifically within the Due Process Clause of the Fourteenth Amendment in another concurrence (“Griswold v Connecticut”). 

Upon his more in-depth analysis of the Fourteenth Amendment, Alito mentions

Instead, guided by the history and tradition that map the essential components of our Nation’s concept of ordered liberty, we must ask what the Fourteenth Amendment means by the term ‘liberty.’ When we engage in that inquiry in the present case, the clear answer is that the Fourteenth Amendment does not protect the right to an abortion (14). 

Alito continues in his opinion down a rabbit hole of 13th and 17th Century treatises pertaining to abortion and goes on to mention how almost every state in the U.S. had criminalized abortion through the 19th and 20th Centuries. It is safe to assume that this is what Alito means by his earlier statements of “… fundamental right[s] must be ‘objectively, deeply rooted in this Nation’s history and tradition’” (13). If the Court were to rely on the history and traditions of the United States, would this not raise questions about more modern legal decisions and precedents, as well as legislative progress that has afforded unenumerated rights and/or protections given to the people? Alito also makes clear that the majority is not aware of any common law case that suggests a positive right to have an abortion at any stage of pregnancy (19). This lack of historical precedence for abortion protections does not necessarily signal that abortion should never be made legal in any form, but rather it can show that—like many other rights that have been attained—the progression of society more often than not leads to the demand for certain rights which become so politically unpopular to oppose, that they become statutorily enshrined by either act of Congress or through Constitutional amendments.

Alito rounds out his opinion by saying

We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have know authority to let that knowledge influence our decision. We can only do our job, which is to interpret the law, apply long standing principles of stare decisis, and decide this case accordingly (65).

It is quite ironic for Alito to say that long-standing principles of stare decisis (precedent) must be applied in this decision while overturning a nearly 50-year precedent that was established in Roe and later strengthened by the decision in Casey. The notion of respecting precedent has always been a common question asked to nominees during their Supreme Court confirmation hearings before the Senate Judiciary Committee. In fact, all five of the Justices expected to sign on to the majority opinion have stated in one way or another that the precedents established in Roe and Casey were settled and established law. Justice Neil Gorsuch said in his confirmation hearing “… Roe v. Wade… is a precedent of the U.S. Supreme Court. It has been reaffirmed… It was reaffirmed by Casey in 1992 and in several other cases” (Lonas 2022). Justice Kavanaugh said this during his confirmation hearing “…it is settled as a precedent of the Supreme Court, entitled the respect under principles of stare decisis. And one of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past 45 years…” (Lonas 2022). Alito, during his 2006 confirmation hearing said that “I think when a decision is challenged and it is reaffirmed that strengthens its value as stare decisis” (Lonas 2022). It is clear now more than ever that at least these three Justices lied under oath to the Senate Judiciary Committee about Roe and/or Casey being settled law and established precedent of the United States Supreme Court. 

Lastly, in the second to last paragraph, Alito proclaims

We end this opinion where we began. Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives (67). 

This delegation back to the states will instantaneously allow for over a dozen abortion restriction laws to go into effect all across the country. Restricting access to safe and legal abortions will not decrease the number of abortions that take place, it will only make it more dangerous for women to get abortions and increase the likelihood of death or serious bodily harm among women trying to receive one. As mentioned previously, the threat that this decision poses is not strictly limited to that of abortion rights. The precedent that this decision would establish surrounding non-explicitly enumerated rights within the Constitution would pose threats to Obergefell v. Hodges 576 U.S. 644 (2015), Lawrence v. Texas 539 U.S. 558 (2003), Griswold v. Connecticut 381 U.S. 479 (1965), along with plenty of criminal justice-related decisions that include Miranda v. Arizona 384 U.S. 436 (1966), Gideon v. Wainwright 372 U.S. 335 (1963), and Mapp v. Ohio 367 U.S. 643 (1961), and really any other decisions that some may believe are set in stone precedent. With the right-wing supermajority on the Court currently, anything is possible.

References

Dobbs v. Jackson Women’s Health Organization (Docket No. 19-1392, 2022). https://www.politico.com/f/?id=00000180-874f-dd36-a38c-c74f98520000 (May 3, 2022).

“Dobbs v. Jackson Women’s Health Organization.” Oyez. www.oyez.org/cases/2021/19-1392 (May 3, 2022).

“Lawrence v. Texas.” Oyez, www.oyez.org/cases/2002/02-102 (May 4, 2022).

Lonas, Lexi. 2022 “What the Conservative Justices Said About Roe v. Wade During Confirmation Hearings.” The Hill, May 3. https://thehill.com/regulation/court-battles/3475490-what-the-conservative-justices-said-about-roe-v-wade-during-confirmation-hearings/ (May 4, 2022).

Lydia, Saad. 2021. “Americans Still Oppose Overturning Roe v. Wade.” Gallup, June 9. https://news.gallup.com/poll/350804/americans-opposed-overturning-roe-wade.aspx (May 4, 2022).

“Obergefell v. Hodges.” Oyez. www.oyez.org/cases/2014/14-556 (May 4, 2022).

“Roe v. Wade.” Oyez. www.oyez.org/cases/1971/70-18 (May 3, 2022).