The leaked Supreme Court draft opinion that overturned Roe vs. Wade has unleashed a political firestorm over the future of abortion.
The February draft, written by Judge Samuel A. Alito Jr., would free states to ban almost all abortions, except perhaps to save the mother’s life.
If the draft becomes a final decision next month, abortion will no longer be a national legal right, but will ignite partisan politics instead.
Before the ruling, there was extensive discussion about what will happen next. Here are three examples of commonly heard speculation and why the reality is more complicated:
Once conservative judges overthrow Roe, they will move to restrict same-sex marriage and contraception
While possible, this is unlikely.
It is true that Alito writes in the draft that the court should recognize new rights only if explicit in the Constitution or “deeply rooted” in the history and tradition of the nation. Such wording would cast doubt on recent liberal rulings, including the 2015 decision making gay marriage nationally legal.
In his draft, Alito sought to silence fears that other rights were now in jeopardy, and he may have needed to do so to win the votes of judges Brett M. Kavanaugh and Amy Coney Barrett.
First, abortion is “unique,” Alito said, because it “destroys … the life of an ‘unborn human being,’” citing Mississippi lawyers in the pending case. Past sentences regarding marriage and contraception are “fundamentally different,” he said, because no one is harmed by them.
Second, he argued that judges should overturn past decisions only if it proved impractical and divisive, and argued that Roe vs. Wade “ignited” the battle over abortion rather than solving it.
As evidence, he noted that lawyers from 26 states had urged the court to revoke the right to abortion.
On the contrary, the decision in Obergefell v Hodges supporting the right to same-sex marriage appears to have resolved the political divide on this issue. Public opinion polls show that an overwhelming majority now support same-sex marriage and no state is trying to overturn it.
“Nothing in this opinion should be intended to question precedents that do not involve abortion,” Alito wrote.
Even so, LGBTQ rights advocates have reason to be skeptical. Conservatives in the court are likely to back up claims by religious conservatives that they shouldn’t be required to participate in same-sex weddings, even if their state law requires companies to provide full and equal services to LGBTQ clients.
The judges were split on that matter in 2018 in the Masterpiece Cakeshop case and decided to hear another Colorado case on the same matter this fall. A ruling in favor of the entrepreneur would represent a setback for LGBTQ rights, but its impact would be limited.
President Trump’s Supreme Court Candidates Lied About Their Views On Abortion During Senate Confirmation Hearings
That’s incorrect, but they, like virtually all Supreme Court candidates in modern history, have provided vague answers and engaged in puns that may have allowed the senators to hear what they wanted to hear.
Since the Senate voted against Judge Robert Bork’s confirmation in 1987, Supreme Court candidates have refused to discuss their views on the most controversial issues in court – and none have been more controversial than abortion.
In this strange dynamic, White House attorneys screen and select candidates they believe will reliably vote for the president on important issues. Then the candidates go before the Senate and claim to be open-minded jurists who have no firm opinions and will try to follow the law.
Trump promised to appoint potential Supreme Court justices who would vote to overthrow Roe against Wade, and his White House attorneys selected candidates with that goal in mind. Questioned by the senators, Justices Kavanaugh and Neil M. Gorsuch said they would not discuss matters that might arise in court.
But when asked about abortion, they talked about the importance of precedents and the doctrine of “stare decisis”, that is, keeping faith with what had been decided. These past sentences are entitled to respect, they said.
During hearings and in private meetings with lawmakers, they referred to Roe as “established law” and “established precedent”. But such terms are actually vague and meaningless, as they simply acknowledge an existing Supreme Court precedent.
Neither promised the Senate committee that they would not vote to overturn those precedents. But this apparently was enough to win the votes of the two Republican women in the Senate, who support the right to abortion.
From the moment justice Amy Coney Barrett was appointed, she was widely held to be a vote to overthrow Roe. While confirming her, he acknowledged her personal opposition to the abortion, but vowed to separate her views from any lawsuits before her.
The court could rule for Mississippi in the pending abortion case without tipping Roe against Wade
This is still possible, but very unlikely. It depends on Kavanaugh.
During the December oral discussions on the Mississippi abortion law, Chief Justice John G. Roberts Jr. was the only one to uphold a restrictive ruling focused solely on maintaining the state’s 15-week abortion limit and leaving Roe. at least partially intact.
While Alito’s draft reflected the views of the five most conservative judges, Roberts’ friends and former employees suggest he drafted a separate opinion, trying to win one or more votes.
Judges follow an internal rule which requires draft opinions in all pending cases to be distributed in May so that others can respond or prepare a dissent.
If Kavanaugh or one of the other Conservatives joined the chief judge, Roberts could issue a middle opinion that he ruled for Mississippi, but he didn’t turn Roe against Wade. If so, the three court liberals would presumably join together in an attempt to moderate the ruling.
But Kavanaugh has sent no signs of interest in such a cautious approach. In the fall, he and Barrett repeatedly refused to join the chief justice in suspending a Texas abortion law even though it made most abortions illegal.
If none of the others agree with the head of justice, he could write a separate opinion that contributes to the outcome. In the past, he has opposed Roe against Wade, and it is also possible that he could subscribe to Alito’s opinion to overturn Roe, making him a 6-3.