On May 2nd, 2022, news company POLITICO published a leaked initial draft of a majority opinion by the Supreme Court that, if adopted, would strike down landmark 1973 decision Roe v. Wade and result in sweeping abortion bans in various states all across the country.
Dobbs vs. Jackson Women’s Health Organization, the pending case for which the opinion was written, involves the constitutionality of a Mississippi state law prohibiting abortion after 15 weeks. Since oral arguments in December 2021, many have speculated that the majority conservative Court would rule in favor of the state — now, there is confirmation.
The majority opinion, written by Justice Samuel Alito, completely and utterly rebukes the decades-old precedent set by Roe v. Wade and reaffirmed by 1992 case Planned Parenthood v. Casey. Under Roe v. Wade, the Court ruled in 1973 in a 7-2 decision that abortion rights were constitutionally protected as a fundamental “right to privacy” under the Due Process Clause of the Fourteenth Amendment. This landmark ruling has effectively made abortion rights up till fetus viability “the law of the land” in the United States for over half a century now, although states were given the discretion to “regulate” abortion in the second trimester and prohibit abortion in the third trimester as seen fit.
In his opinion, Alito did not shy away from insulting the prior decision. A 2006 Bush appointee with conservative beliefs, Alito’s argues that the right to abortion was never explicitly mentioned in the Constitution, pointing to the extensive bans on abortion in the U.S. up until 1973; thus, as a political issue and not a constitutional issue, its handling should be left to the states and the people. Within the 98-page document, Alito goes on to call the Roe v. Wade decision “egregiously wrong from the start” and its reasoning “exceptionally weak.” Alito also proclaims that making distinction between the “viability” of fetuses able to live outside the womb and those unable to “makes no sense,” and that “a right to abortion is not deeply rooted in the Nation’s history and traditions.”
If adopted, the ramifications of this majority opinion would be vast, undoubtedly changing the course of women’s rights in U.S. history. 13 states, primarily in the South and Midwest, have “trigger laws” that would immediately prohibit almost all abortions in the absence of Roe v. Wade. (Abortion’s legality in liberal states such as California would likely remain unchanged.)
But perhaps the only thing as shocking as the ramifications of this majority opinion is the opinion being leaked in the first place. Between the Justices’ life tenure and minimal media coverage, the judicial branch is widely considered the most well-insulated from public opinion of all three government branches — something the Supreme Court actually takes pride in. Thus, public leaks regarding the Supreme Court are exceedingly rare, and a leak like this pertaining to an ongoing case has never occurred before in the modern history of the Court. The tradition of secrecy surrounding the Court has been broken.
Because of the unprecedented nature of this leak, the future remains uncertain. Although seemingly unlikely, there is a slight possibility that public outrage will prompt Justices to change their votes, as they often do on controversial cases. Regardless of the impact of the leak, the future of reproductive rights in this country will likely be revealed some time in the next two months.
1. What is your initial reaction to this majority opinion being leaked? Are you surprised by the contents of the document? Why or why not? How do you think the public at large, as well as the other branches of the government, will react to this?
2. Besides those listed in the post above, what are some possible consequences of this majority opinion being adopted, both short-term and long-term? How will this affect the political landscape, particularly with the upcoming 2022 midterm elections?
3. In his opinion, Alito states that in order for rights not explicitly enumerated in the Constitution to be considered constitutional rights, they ought to be based in long-standing U.S. history and tradition. What sort of precedent does this set for rights neither explicitly enumerated in the Constitution nor based in U.S. history and tradition, such as the right to contraceptives and the right to same-sex marriage?
4. In Federalist No. 78, Alexander Hamilton stresses the importance of "judicial independence," mainly from the executive and legislative branch. However, this concept can also be expanded to include independence from public opinion. How do you think highly confidential information from the Court being leaked to the public will affect "judicial independence"? Is this something to be concerned about? Will increased interaction between the judicial branch and public opinion make the Court more democratic, and is that something to be desired?
Sources:
https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473
https://www.politico.com/news/2022/05/02/supreme-court-draft-opinion-00029475
https://www.oyez.org/cases/1971/70-18
https://www.oyez.org/cases/1991/91-744
https://www.oyez.org/cases/2021/19-1392
8 comments:
It was shocking to see this decision being released, and surprising it got leaked at this time. I do not think that it is surprising. The court is majority conservative, and what was leaked and stated in this article was said that it didn't follow the constitution and the amendments but it doesn't seem to state why it does not fall under the right to privacy. I think that the public is going to react poorly, it's going to react like it always does with the abortion debate, and it's going to be a hot debate and continue to raise tensions. I think that this is going to have a pretty significant impact because a lot of young people are on the left, and this may cause them to vote to get more of an impact in the legislative branches, causing more people to vote and perhaps changing the legislative branches through the house. I think this is also going to impact the safety of people who want abortions. Many people still want and need access and can put themselves at risk, by taking an illegal abortion. This is going to harm the child-bearer. The precedent that this is going to set is for reproductive rights, we've seen cases like this before with Griswold V Connecticut and Roe V Wade. Furthering restricting reproductive rights, if it was never said in the constitution reproductive rights could be limited, even if it is brought up again which can harm many people. I don't think its something to be concerned about, they are not going to change how supreme court justices are going to be appointed, they are still going to have independnce for their choices with out fear of public opinion. There have been many contrviersial cases throughout history that havent changed how the supreme court is set up.
Even though there has been a lot of media coverage this past year speculating about the end of Roe v. Wade I was still really surprised and saddened by the recent news. Like Freja mentioned, it’s a devastating blow for the state of reproductive rights and bodily autonomy across the nation, especially with trigger laws set in place. Although we live in California and this change will likely not have an effect on abortion law in our state, it will greatly impact people living in more conservative states. I know it’s a tired point but abortion bans and restrictions do not stop abortions, they just make people more likely to get unsafe illegal abortions, which can be fatal. This is primarily going to affect lower-income individuals, as due to multiple factors they are more likely to be in the situation of needing an abortion but not having the resources to travel out of state to get one. Beyond reproductive rights, Roe has set the foundation for several other privacy rights that are now at risk when Roe is overturned.
While the leak was certainly surprising, the decision has been predicted by the media and at this point it was expected. With the big conservative majority in the Supreme Court, a controversial and often talked about decision to be overruled should have been seen earlier. With states like Texas and Florida in recent years limiting access to abortion, it would be likely for conservatives in federal government to do the same. This leaked decision is a huge blow to women's rights and other decisions surrounding the inferred right to privacy. Conservative states that already have passed legislation limiting access to abortion and if Roe v Wade is overturned then some states might just outlaw abortion all together. One of the worrying aspects of this would be that women would no longer have control over their own body which seems like an obvious right that should be protected. Another issue I find with this possible ruling would be that conservatives are trying to limit abortion but past that they don't care. If they forced a woman to follow through with her pregnancy, conservatives have not created any kind of child support aid and essentially don't seem to care about the problem after the baby has been born. Beyond Roe v Wade, this decision would have huge impacts on other aspects of previous court decisions with less care towards leaving decisions up to precendent. Other previous court decisions surrounding the inferred right to privacy would be gay marriage and contraceptives. Since the court is ruling that the right to privacy is not in the Constitution, these rights may also be in danger as well.
.I personally am not surprised considering the court is a majority conservative so overturning case is what I would expect. I feel like an obivous consequence of this would be states increasing regulations and restrictions of abortions now that the federal court has deemed it ok to do so. I do think however there maybe another case similar to roe v wade or something that deals with the laws regarding abortion that may stretch or restrict the rules of abortion. I think contrceptives and right to abortion fall into the right to privacy, which isnt exactly listed in the constitution, but I feel like right to privacy is an integral part of perserving the numerous other rights. therefore I feel like the federal government needs to protect such rights in a manner that allows most Americans to exercise them like any other right such as religion or speech.
Unfortunately, I am not surprised by the information that was leaked because of the conservative court. We have been expecting resistance to Roe v. Wade since Amy Coney Barrett was sworn in, and this just confirms that suspicion. Additionally, although this specific ruling fights against Roe v. Wade, I do believe that it indicates that the court will continue to attack precedent cases, such as the right to same-sex marriage. The Court will use the argument that these rights are not explicitly written into the Constitution, allowing them to strip away rights that have been protected for decades.
Even though I’m quite disappointed with this decision, I am not surprised. The media and members of the court have made it clear that Roe was going to end. However, I have a few things to say about this decision.
1. The fact that Alito quoted a Salem Witch Trials judge is utterly insulting. The Salem Witch Trials were conducted in a time when women were abused treated horribly, and the judges in these infamous trials played a major part in the abuse of women.
2. Many people claim that it is only the liberal SCOTUS justices who are the judicial activists. I say it is those who are in power in the courts. Now that the conservatives who have power in the courts, they are using their power for judicial activism, and their major decision against Roe v. Wade completely ignores the principles of stare deceses.
3. I’m worried. Lots of people are saying we live in California and this won’t affect us. However, due to the supremacy clause, if Congress outlaws abortions, it could affect women here as well.
This is a sad moment for America and I believe it will have far reaching consequences that will permeate many aspects of society, from privacy rights, to contraception, to gay marriage and other things as well.
Though I was initially shocked with the leak of the decision, I cannot say that I am surprised given the number of Trump-appointed justices there are on the Supreme Court. As we've seen, the publics reaction to this leak has been numerous protests across the nation and a nationwide outcry that is big enough to require a fence built around the Supreme Court and a security detail around the justices' homes.
Of course, the decision will have huge political implications; as others have said, the revoking of the right to privacy embedded within the Roe v. Wade decision will become the basis for future decisions that may further infringe upon Americans' privacy as there would be no more precedent of protecting it. In terms of affecting elections, I have a feeling that this may mobilize left-leaning voters who may not regularly vote to participate in the midterm elections. Revoking the right to an abortion has angered a lot of people and enough people are passionate about such an important right that more Democratic voters may be mobilized.
In terms of "long-standing history and tradition," although I think this statement couldn't be more bogus, it will probably be the stepping stone for easily-made conservative decisions in the future. "Long-standing history and tradition" means the same thing as "conservative in nature". The precedent that this opinion will create for years/decades to come will tilt America deeply to the right.
I am surprised at the majority opinion being leaked, and the reasoning of the judge makes it appear as though they can do anything they want to. You added Alito’s quotes regarding abortion, and they are opinions or otherwise incorrect. I think the public wouldn’t be happy about the ruling, especially since the fight to get Roe v. Wade accepted before it was large. I think if other branches of government react and are in support of Roe v. Wade they would try to find loopholes to undermine the new law. State governments or communities might disregard the law and create their own procedures regarding abortion. I think it would further divide Democrats and Republicans for the next election, possibly making the next election more chaotic. The precedent it sets for future rights makes it so that the court can argue anything about those rights, as long as it’s politically correct without needing justifiable reasoning. It could possibly pose a threat towards rights not enumerated in the constitution especially if it’s things that Republicans normally disagree with. I think the confidential information being leaked doesn’t really affect judicial independence, since the judges should be considering the wishes of the people before making their decision, and it is the people of the United States who are protesting nonviolently. I am more worried about the overall overturning of the case as an issue of judicial independence, since it seems more political from a lack of good reasoning.
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