What happens if the Supreme Court ends Roe?
From 2022 back to 1973
Hi, Ari here with some thoughts for you on one of the greatest legal earthquakes in the modern era… To receive all my full newsletter you can subscribe here:
“Super-Precedent”
The unprecedented leaking of a draft Supreme Court opinion sent shockwaves across the nation this week. Here is what we know:
There have been five votes to overturn Roe v. Wade’s right to abortion since February.
The draft opinion is real -- the Court confirmed its accuracy. The draft reflects that five justices voted to both uphold Missippi’s harsh abortion ban, and to go farther and completely overturn Roe v. Wade.
The draft opinion is sweeping. It is the most extreme version that this kind of ruling could take (rather than something that “narrows” Roe, or upholds the state law without overturning all the decades of prior precedent).
The opinion attempts to cast Roe as the kind of discredited precedent that was “always” wrong -- the way the Court has dealt with withdrawn precedents that once supported segregation.Justice Alito asserts Roe has been “egregiously wrong from the start.”
That obviously undermines most GOP appointees’ claims about Roe in their confirmation hearings. If it was always wrong, it was wrong back when they were claiming to respect it, or dubbing it a “super precedent.”
While everyone sees this daft ruling as an attack on abortion rights, by Justice willing to toss precedent and imperil some of the Court’s legitimacy in pursuits of a pro-life, anti-abortion agenda. And yet Justice Alito claims the opinion and his majority are neutral on the issue. He writes the decision is “not based on any view” of abortion and whether a fetus should have human rights. That sounds illogical because it is.
The Court will release its decision in this case by the end of its term, typically late June or early July.
If the Court continues to have five votes overturning Roe, then the day such a ruling comes down, automatic abortion bans go into effect in at least 13 states, under current “trigger laws.” Other states may decide to enact new abortion restrictions, which would be green lit by the Court, or to maintain abortion rights.
What’s next
Now, here’s some of what we don’t know:
Whether the looming final decision could be significantly different than this draft.
Who leaked the draft -- and whether the motive was to change the outcome, or to somehow use a prior draft to push towards that outcome, rather than something different that may have evolved during the drafting and deliberation process.
Whether this kind of decision imperils other rights, from privacy to contraception to marriage equality. Justice Alito writes that it won’t, without doing much “legal work” to distinguish those related cases, or lock in any guarantee.
Liberty, Democracy and Small Government
Abortion has been a legal and political fault line in America for much of the past half century.
Alito’s draft ruling combines many challenges in a kind of singular, governmental explosion, including:
The dominance of minority rule, and how two presidents who received fewer votes have swiftly reshaped the Court (Bush Jr. appointed Alito; Trump appointed 3 of the votes here)
What happens when the Court, for the first time, rescinds a fundamental constitutional right that has been afforded to the public
How “extra constitutional” acts by the political branch, like Sen. McConnell hijacking a Supreme Court vacancy, are functionally rewarded as political maneuvers, which may incentivize them for both parties
The contradiction of party claiming “conservative, small government” pushing a judicial plan to reinject government oversight into medical and personal decisions
There is little in recent history or the Court’s actions that countenances stability or complacency here.
Former American Constitutional Society President Caroline Fredrickson stresses that the Alito draft, as written, “undermines the foundation of other decisions that are based on the same judicial reasoning.”
Most cases and law are adjudicated by lower courts. If this draft is the final ruling, they will then take it and can apply it to issues like privacy, contraception, sodomy, marriage equality or interracial marriage.
If one thinks, “that sounds too far,” it’s worth considering that most of those precedents are newer -- and have been treated as less sacrosanct than Roe itself.
No Supreme Court opinion has ever leaked like this, so there’s no template -- in law or society -- for the next few weeks of limbo. The formal legal impact only arrives when a decision comes down. But the public and political reaction will continue throughout this period, which is fitting in a democracy, and I heard from a whole range of protesters, officials and experts in reporting at the Supreme Court this week. I’ll continue that reporting on The Beat, and sharing thoughts with you here, in the weeks ahead.
In the meantime, what did you think when you first heard about this draft? Do any readers remember when Roe first came down, and did you think this day might come? Tell me in the comments, as well as any questions you might like me to tackle in the future.
Overturning Roe?
If so, we’re continuing to trip the light fantastic down the road toward Fascism. What’s next? Who’s next??
This is an Originalist argument claiming no deep roots in our documents. In fact the entire female sex has no deep roots in our Constitution. Women are not named in the constitution until they win the vote in 1920. You cannot apply the mores of the 18 th century to the 21 st century because the cultures are so different. This flawed argument should not stand.