A purported draft of what is believed to be the U.S. Supreme Court’s upcoming ruling on whether to overturn a long-standing decision protecting the right to abortion not only indicates the court will overturn that decision – Roe v. Wade — but also that it is poised to overturn landmark pro-LGBT decisions.
The draft, reported by Politico.com May 2, appears to be authentic. But it is dated February, leaving open the possibility that it is not finalized. At least five justices must sign onto a decision to carry the majority, and votes on some decisions in the past have changed very late in the process, as justices either were persuaded or repelled by the language of a proposed majority decision. Also in the past, attempts to report the outcome of cases before the decisions were released simply turned out to be wrong.
“We hold that Roe and Casey must be overruled,” states the draft decision, referring to Roe v. Wade and Planned Parenthood v. Casey. Roe, in 1973, said there is an implied right to privacy and liberty guaranteed by the Constitution that covers the right to choose an abortion.
Casey, in 1992, said that states could regulate abortion once a fetus becomes viable as long as the regulations did not create an undue burden on women who seek an abortion.
In the language that is likely to be most troubling to LGBT legal activists, the draft opinion, apparently penned by Justice Samuel Alito, states, “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision,” including the due process clause of the 14th Amendment. According to Alito, the only implicit rights the 14th Amendment due process clause protects can be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”
Alito then notes that abortion does not fall within that realm and, in language reminiscent of a 1986 decision that allowed states to ban same-sex sexual relations, noted that three-fourths of states made abortion a crime when the 14th Amendment was adopted.
But Alito also says that abortion is “critically different” and “fundamentally different” from some other rights that have been protected by the 14th Amendment — such as intimate sexual relations, contraception, and marriage — because abortion takes the life of an “unborn human being.”
And the proposed majority opinion states that the issue of abortion should be left to “the people’s elected representatives.” The apparent leaking of the draft decision has stirred as much controversy as the 98-page draft decision itself. The U.S. Supreme Court has a long-standing protocol of not signaling to the public how its decisions are developing. The assumed motivation behind that has been to prevent politics from putting pressure on the court’s legal analysis and reasoning. Some legal commentators were characterizing the Alito leak as a blatant attempt to play politics with the final formulation of the court’s abortion opinion.
The case in question is Dobbs v. Jackson, in which an abortion clinic challenged a new law in Mississippi that banned abortion at any time after 15 weeks, unless there is a medical emergency or severe fetal abnormality. Most observers following the case and the court’s oral argument have predicted the Supreme Court majority would likely overturn Roe and Casey. But nearly everyone expected the decision to be released in late June, when the court typically releases its most controversial decisions. The fact the draft was leaked suggests the author was worried that he might lose the votes he needed to secure the majority and, thus, leaked the draft publicly to rally political pressure on any wavering justice.
“If they can do that for this,” said Neal Katyal, former acting solicitor general, “they can do it for gay marriage or anything else that the court has guaranteed, and that is a very, very scary prospect.”
Lisa Keen is the Chief Correspondent for Keen News Service, a professional news organization specializing in national political and legal news that involves or affects gay, lesbian, bisexual, and transgender people.