Comment: More than just abortion access is at stake here

The court’s conservative majority could leave open to challenge other civil rights cases considered precedent.

By Melissa Murray and Leah Litman / Special To The Washington Post

The truly shocking thing about the draft Supreme Court opinion overruling Roe v. Wade is not that it leaked, extraordinary as that is. It’s that the opinion by Justice Samuel A. Alito Jr. adopted such an aggressively maximalist position, not only giving states extraordinary leeway to prohibit abortion but also implicitly inviting a flurry of challenges to other precedents, including cases protecting contraception and LGBTQ civil rights. Perhaps the most stunning feature of the opinion is that its indignant tone and aggressive reasoning make clear how empowered this conservative majority believes itself to be.

The bottom line, if the reported majority holds, will be unsurprising. While running for president, Donald Trump promised to appoint justices who would overrule Roe. At the oral argument in December in the challenge to Mississippi’s law prohibiting abortion after 15 weeks, five justices seemed inclined to overrule Roe and Planned Parenthood v. Casey, the 1992 case that reaffirmed the constitutional right to abortion.

But to read the actual draft is another matter. The draft goes out of its way to ensure that there are no limits whatsoever on states’ ability to restrict abortions. It loudly announces that courts should review abortion restrictions under the most deferential standard available, rational basis review, and not “substitute their … beliefs for the judgment of legislative bodies.”

Alito also chose to rely on the most outlandish arguments to justify overruling Roe. In a nod to Justice Clarence Thomas’s baseless claim that abortion is a modern-day form of eugenics, a footnote cites amicus briefs claiming that some abortion-rights advocates are “motivated by a desire to suppress the size of the African-American population” and observes that “it is beyond dispute that Roe has had that demographic effect.” The opinion also invokes Justice Amy Coney Barrett’s stunning suggestion at oral argument that the need for abortion rights is obviated by safe-haven laws, which let parents relinquish their rights by leaving infants at police stations or firehouses.

The draft also could open the door to claims of “fetal personhood,” a position that would not only permit states to prohibit abortion but would prevent states that choose to allow abortion from doing so. A footnote cites an amicus brief by legal scholars John Finnis and Robert George, who argue that “unborn children are persons within the original public meaning of the Fourteenth Amendment’s Due Process and Equal Protection Clauses”; a conclusion they say would make “prohibitions of elective abortions constitutionally obligatory.”

If it becomes law, the draft will also unleash a slew of challenges to other precedents that were assumed to be settled. Many of the criticisms that the court levies at Roe — and there are many — apply with equal force to other precedents.

For example, the court declares that the Constitution “makes no reference to abortion” and argues that abortion rights were “entirely unknown in American law” throughout most of the nation’s history. The same is true of contraception, which the court held states could not restrict in Griswold v. Connecticut. It’s true of marriage, including interracial marriage and same-sex marriage, which the court has held could not be prohibited in Loving v. Virginia and Obergefell v. Hodges. It’s true of sexual intimacy between consenting adults, which the court held states could not prohibit in Lawrence v. Texas.

The draft opinion also disapprovingly notes that “far from bringing about a national settlement of the abortion issue, Roe and Casey have inflamed debate and deepened division.” That’s not true. But nothing will stop the court from making the same false arguments about private intimate conduct or marriage equality. Alito ridiculed the “high a level of generality” in the reasoning of Casey, which spoke of individuals’ “destiny” and ability to define “their own concept of existence.” Similar language appears in both Lawrence and Obergefell.

The court’s weak effort to limit its wrecking ball of an opinion to the abortion right is hardly a guardrail. If anything, it’s red meat for conservative litigators. Alito insists that “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” But that largely unreasoned aside is cold comfort when the court has provided reasons for criticizing Roe that seemingly apply to other cases. The court’s claim that the abortion right is unique because it “destroys” “potential life” or the life of an “unborn human being” cannot be taken seriously. After all, in the court’s decision invalidating the federal government’s contraception mandate, Alito wrote for the majority that employers were entitled to view contraceptives as abortifacients.

The caustic tone and aggressive reasoning suggest this conservative majority feels unconstrained. It does not fear political pushback for its angry tirade against abortion. It does not feel any sense of obligation or concern for the women who will suffer as a result of the opinion. And it has no sense of institutional propriety that might lead it to act with more humility and caution.

Melissa Murray is the Frederick I. and Grace Stokes professor of law at New York University. Leah Litman is an assistant professor of law at the University of Michigan and host of the Supreme Court podcast “Strict Scrutiny.”

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