The draft opinions that are distributed to the justices of the United States Supreme Court are intended to allow for deliberation and editing before the final version is published. They are not the last word, nor are they made to know the reaction of the public.
But on the afternoon of May 2, 2022, Politician published a bombshell: a leaked draft of those opinions, written by Judge Samuel Alito, overturning the sentences Roe vs. Wade Y Planned Parenthood vs. Casey –the two rulings that gave constitutional protection to the right to abortion in the US–.
Although the final text in the case of Dobbs vs. Jackson (preceded by the leaked text) may be somewhat different, the meaning of the current draft is clear. First, the power of individual states to determine the legal availability of abortions is increasing. Second, the Supreme Court’s barriers to overturning precedent are lowering.
In the American constitutional democracy, many decisions are made by majority, through elections. This applies to routine regulations like drug laws or speed limits.
But other decisions are beyond the reach of majorities and are protected by individual rights guaranteed by the Constitution. depending on the case Roe vs. Wadethe decision on abortion fell into the category of rights.
But the leaked draft makes abortion cease to be a right guaranteed by the Constitution to become an act whose legality will be determined by the laws of each state.
That means it falls under majority rule, determined by the citizens of each state through their elected state legislators. US Supreme Court Justice Samuel Alito is saying that when the Constitution does not recognize a clear right, the people should elect representatives who share their opinion rather than appeal to the courts.
Alito’s draft repeats several times its central position: the right recognized in the case Roe v. Wade “It has no basis in the text of the Constitution or in the history of our nation.”
The court that decided the case Roe v. Wade, Alito writes, “usurped the power to address an issue of profound moral and social importance that the Constitution leaves unequivocally in the hands of the people.” Therefore, “it is time to heed the Constitution and return the issue of abortion to the elected representatives of the people.”
Is there a constitutional right?
The cases Roe v. Wadein 1973, and Planned Parenthood v. Caseyin 1992, determined that the right to abortion is found in a combination of protections recognized by the Constitution.
These include the protection of the Fourth Amendment against state intrusion, and the recognition of unenumerated rights, or “others held by the people,” of the Ninth Amendment. The most prominent justification in those rulings is the Fourteenth Amendment’s protection against deprivation of “life, liberty, or property, without due process of law.” Sentence Roe v. Wade founded the right to abortion on a broader right to privacy, while the judgment Planned Parenthood v. Casey added an emphasis on reproductive autonomy and bodily integrity.
In Alito’s opinion, the Roe judgment “was remarkably flexible in its treatment of the constitutional text. He argued that the right to abortion, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned”. The draft of it concludes that Roe’s “message seemed to be that the right to abortion could be found somewhere in the Constitution and that specifying its exact location was not of paramount importance.”
The criterion that the Supreme Court has used to recognize a right not specifically included in the text of the Constitution has been if it is “deeply rooted in the history and tradition of this nation.” Alito’s project requires historical evidence of political statements, court decisions or public laws that demonstrate the existence of the right.
But Alito’s review of history argues the opposite: there is no evidence of an established right and there are, instead, many examples of public restrictions. A 30-page appendix lists all state laws prohibiting or regulating abortion passed between 1825 and 1952. It concludes that “until the latter part of the 20th century, there was no support in American law for a constitutional right to have an abortion. Zero. None”.
An important part of the draft sentence focuses on the question of who has the power to determine the prevailing social realities, as well as the protected legal principles.
At what point a fetus becomes a person – and, as such, a rights holder – is an old dispute at the center of the abortion debate. This is a crucial aspect of the conflict, because a woman’s rights to autonomy and freedom can be limited if the rights of other people are at stake. But it has not been clear who has the power to make that decision.
The Roe cases –50 years ago– and Casey –30 years ago– said that the court should establish a national standard to recognize the personality of the fetus. Casey established viability at around 24 weeks, or the point at which the fetus is considered to be life-sustaining outside the womb, as the point at which a State could recognize the rights of the fetus and, therefore, therefore restrict abortion.
But Alito argues that this specific rule is “meaningless” and that previous rulings “provided no substantiated defense of the feasibility line.”
So Alito places the decision of when a fetus becomes a person squarely in the hands of elected representatives in each state: “In some states, voters may believe that the right to abortion should be even broader than the right that sentences Roe and Casey recognized. Voters in other states may want to impose strict restrictions based on their belief that abortion destroys an ‘unborn human being.’
A weakened standard to override precedent
The Supreme Court is loath to throw out its previous rulings, and sticks to precedent unless there is substantial reason to repudiate old reasoning.
For 30 years, the Casey ruling, which upheld Roe’s, has been considered “precedent upon precedent.” He established four considerations to legitimately rule out the previous decision: the ruling misunderstood the Constitution; it was unfeasible in practice; new realities had emerged; and citizens had shaped their vital decisions based on the sentence, what is known as “trust interests”.
By overturning the Roe ruling, the now leaked draft offers a new and weaker standard for overturning a precedent. The most significant change is what Alito calls “the quality of reasoning.” Sentences that “look like legislation”, that offer a flawed history or that create norms not justified by the Constitution can be annulled, according to their reasoning. This new criterion concludes, in the draft, that the precedents “do not compel endless adherence to Roe’s abuse of judicial authority.”
Alito’s draft reverses Roe by weakening the law of precedent. This is likely to open the door to the possible reversal of many other rulings, including on same-sex marriage and affirmative action.
A future of conflicts at the state level
We know that state legislatures will gain power if the final sentence resembles the leaked draft. What we don’t know is what each of them will do.
Some analyzes estimate that about 25 states will ban abortion, which would divide the nation equally into abortion-right states and anti-abortion states.
This will undoubtedly increase the regional polarization and geographic division of Americans by culture and ideology. It’s also likely to create long-term conflict in states divided by ideology and partisanship, including places like Florida, Pennsylvania and Ohio. This creates the conditions for this issue to dominate state elections and partisan struggle for years to come.
It is likely that some states will try to restrict the travel of their own citizens, and that states with abortion rights will try to help other citizens to move to their territory to have an abortion.
It is unclear how the Supreme Court will react to these laws. But what is clear is that Alito’s bill will return power over abortion, and potentially other issues, to the state level, raising the stakes and also fueling discontent with democracy across the United States.