The legal team at the Freedom From Religion Foundation was still digesting Monday’s unanimous opinion by the Supreme Court regarding a request to fly a Christian flag at Boston City Hall, when Politico later that night released its blockbuster leak over a pending abortion case.
The leaked document was a draft opinion in the Dobbs v. Jackson Woman’s Health Organization case, which poses a challenge to Mississippi’s 15-week abortion ban. That the ultraconservative majority on the court would likely rule in favor of the state in this case was not surprising. To be sure, the moment they took the case, after Justice Amy Coney Barrett was confirmed, we knew the majority intended to gut the constitutional right to obtain an abortion. We knew women’s rights to reproductive justice and freedom were threatened. We just weren’t sure how far they’d go. Our concerns were heightened even more when the Supreme Court refused to block SB 8 in Texas as challenges to that six-week abortion-ban-and-bounty law were being filed and heard in the lower courts. We then knew there was a very real and imminent possibility that they’d abolish the right entirely.
We were not wrong. The 98-page leaked draft majority opinion penned by Justice Samuel Alito reveals that the court has at least five votes to overturn the 1973 landmark case, Roe v. Wade, and a 1992 companion case, Planned Parenthood v. Casey. The outcome, while expected, is still shocking. The draft is extreme. It should raise the ire not just of abortion rights advocates, but anyone who supports the separation between state and church.
Of course, the draft opinion is just that — a draft. It is not the final decision in this case. It is the first version circulated in an effort to secure the final five votes. This opinion was and is still going to go through multiple drafts and will not necessarily look the same when we see the official published decision later this summer.
Still, we now know there are at least five votes — apparently from Justices Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Barrett — to overturn the constitutional right to abortion. The reasoning may change in the next month or so, but the result will be the same: Women’s right to obtain abortion care will revert back to the states, which means it is not a protected right at all. And, in so doing, for the first time, the court will take away a fundamental constitutional right. This is concerning beyond just the issue of abortion.
To briefly summarize Alito’s draft opinion: Roe and Casey “must be overruled” because these five justices find there is no constitutional right to abortion. The court does not need to adhere to the doctrine of stare decisis (the principle that the court must respect the precedential value of its own past decisions) because “Roe was egregiously wrong from the start” and the court must take action to correct the error.
There are five things you should know about what this draft opinion says and what it means:
1. Alito says the Constitution doesn’t mention abortion so it’s not a right.
Alito begins by noting that the Constitution doesn’t mention abortion as an enumerated right and also that it cannot be seen as a protected right gleaned from other constitutional provisions. He writes, “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.” He goes on to explain that while the 14th Amendment guarantees some rights not explicitly stated in the Constitution, those rights need to be “deeply rooted in this nation’s history and traditions” and “implicit in the concept of ordered liberty.”
To figure out if the abortion right is “deeply rooted,” he claims, you must make a historical inquiry. Alito then launches into a historical analysis that historians are now saying is ignorant of actual history. FFRF has often said that bad history makes bad law — and when it comes to state/church separation, Christian nationalists have flooded the courts with bad history that has led judges astray. Alito is leading the charge here.
He starts off that inquiry saying, “Until the latter part of the 20th Century, there was no support in American law for a constitutional right to obtain an abortion. Zero. None. No state constitutional provisions had recognized such a right … no federal or state court has recognized such a right. Nor had any scholarly treatise of which we are aware.” He then launches into a deep historical analysis — of almost 10 pages — showing that abortion was a crime under the common law (he goes back as far as the 13th century), in the colonial period in America, and at the time of the adoption of the 14th Amendment (where he notes three-quarters of the states had abortion listed as a crime at all stages of pregnancy), up through Roe. His analysis leads to “[t]he inescapable conclusion is that a right to abortion is not deeply rooted in the nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.”
We’ve long since known that Alito is an originalist, but his reasoning here sets a dangerous precedent that any right not recognized as such at the founding or at the later adoption of the 14th Amendment in 1868 is then doomed to the same fate as abortion rights. They cannot ever be considered protected constitutional rights. This cannot be the standard in a society that continually evolves in its science and technology, and progresses from its racist, sexist and homophobic past.
Alito’s opinion then discusses whether the broader right to liberty — and specifically the rights to privacy and autonomy — allows for the right to obtain an abortion. He quotes Casey, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” But he says that right is not “absolute” and notes “[w]hile individuals are certainly free to think and to say what they wish about “existence,” “meaning,” the “universe,” and “the mystery of human life,” they are not always free to act in accordance with those thoughts.” This is pretty rich coming from the author of the Hobby Lobby v. Burwell decision, which allowed employers to block their employees’ access to birth control.
The right to privacy and the right to autonomy, which include the right to marry and whether to have children, are deeply rooted in our history and traditions. They’re not enumerated, but Alito discards the Ninth Amendment of the Constitution, which states, “[t]he enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people.” Of course the Bill of Rights didn’t lay out all of our rights and liberties. That’s why there’s a Ninth Amendment.
2. The role of stare decisis.
A main argument in this case centers on whether the doctrine of stare decisis forecloses the ability of the Supreme Court to overturn Roe and Casey. Stare decisis is Latin for “to stand by things decided” and is the principle that courts should normally follow the rulings of prior decisions. It’s a principle that lawyers and judges consider “holy” because it creates a respect for the rule of law by promoting even-handed decision making. It creates a stability in the law, that in theory is out of the reach of ideology or political will. This stability allows litigants, and their counsel, to rely on decisions previously handed down when making their arguments to the court.
Lawyers for Jackson Women’s Health Organization argued that Roe and Casey were settled law (Roe has stood for nearly 50 years and Casey reaffirmed Roe’s central holding). Naturally then, Alito’s draft opinion spends a significant amount of time discussing this doctrine. Despite his lengthy discussion, it’s evident that he does not care that he’s upending decades of settled law.
Because the opinion overrules precedent, Alito needs to explain why the court is not adhering to settled law. He notes that stare decisis is “not an inexorable command” and is at its “weakest” when interpreting the Constitution. He then writes that “[s]ome of our most important constitutional decisions have overruled prior precedents” and goes on to cite cases like Brown v. Board of Education (repudiating separate but equal) and West Virginia Board of Education v. Barnette (ruling public school children cannot be compelled to salute the flag). Never mind that those cases generally expanded constitutional rights versus taking them away.
He then lays out five factors that weigh in favor of overruling precedent: the nature of the error; the quality of reasoning; the workability of the rules; the disruptive effect on other areas of the law, and the absence of concrete reliance on the law. When assessing those factors, he finds Roe and Casey must be overruled.
Alito writes that Roe was “egregiously wrong” and that Casey “perpetuated its errors.” Those decisions, he says, failed to be grounded in text, history or precedent, and they relied on an “erroneous historical narrative.” He asserts that the framework set out by these cases are “unworkable” and have caused confusion and disagreement. While he concludes that there are not concrete reliance issues at play here, he suddenly purports to be a champion of women’s rights by asserting that the decision to overturn a fundamental right for women “allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting and running for office. Women are not without electoral or political power.” He then points out that women vote in higher numbers than men. Notably, he fails to recognize that women make up only 30 percent of state legislators nationwide (that number is much lower in Mississippi at a measly 15 percent), the very elected officials who would be making those decisions.
The draft opinion “return[s] the issue of abortion to the people’s elected representatives,” which brings us to the next point.
3. A new standard of review for state abortion laws.
If abortion is not a fundamental right, then challenges to state abortion laws will not undergo the highest scrutiny when evaluated by a court of law. If this opinion is the final writing, any challenges to state abortion laws will be evaluated under the “rational basis” standard. This standard is the lowest level of scrutiny and is the idea that a law is constitutional if it is rationally related to a legitimate government purpose. Laws evaluated under this level of review are presumptively valid and rarely, if ever, overturned.
During this section of the opinion, Alito spends barely two pages evaluating the Mississippi state law, the Gestational Age Act. He quickly determines the state’s interests in “protecting the life of the unborn,” and the legislature’s findings that the medical procedures used after 15 weeks are “barbaric” and “dangerous” to the woman and “demeaning to the medical profession” are legitimate and form a rational basis for the law. Therefore, the state law is constitutional and upheld. This will be the fate of all other abortion bans currently on the books and those proposed in state legislatures’ across the country.
If the court is willing to take away fundamental rights, then leave them subject to only rational basis review, protections for insular minorities in our country no longer exist. The Bill of Rights in conjunction with the other amendments are supposed to guard against the tyranny of the majority. A legislature can nearly always pass rational basis review. If these liberties are now subject to the whims of the legislature, minorities will always lose. Many rights are now in jeopardy.
4. Effect on the separation of state and church principle.
The draft opinion ignores the constitutional principle of separation between state and church and continues the trend of privileging religious persons and their beliefs over the rights of all others. Justice Alito writes, “[t]here is ample evidence that the passage of [anti-abortion] laws was … spurred by a sincere belief that abortion kills a human being.” This, as FFRF noted in its amicus brief to the Supreme Court in this case, is a religious view. Religion has always been at the heart of anti-abortion legislation and it was no different in Mississippi. The separation of state and church concern was also brought up by Justice Sonia Sotomayor during oral argument back in December. She asked the Mississippi Solicitor General Scott Stewart, “How is your interest anything but a religious view? The issue of when life begins has been hotly debated by philosophers since the beginning of time. It’s still debated in religions. So, when you say this is the only right that takes away from the state the ability to protect a life, that’s a religious view, isn’t it?” This opinion does not answer her question, and we have little doubt it will in its final version.
As mentioned, the outcome of this vote on abortion was not surprising, and although the language of the draft opinion is extreme — some might even say radical — the ideas and reasonings put forth are not foreign to the practicing state/church attorney. The use of history and traditions to analyze laws and rights has been common practice in the Establishment Clause jurisprudence for decades, and — since I’ve been with FFRF — has never resulted in a favorable decision for the separation of state and church. History and tradition have been used to condone prayers at legislative bodies and to uphold government-sponsored religious displays on public property.
Alito’s diatribe on Roe and Casey having “unworkable tests” brought to mind Justice Neil Gorsuch’s similar rant over the Lemon test in his concurrence in the recently decided Shurtleff v. City of Boston flag case. There, too, Gorsuch talked about the unworkability of the test used to scrutinize governmental actions challenged under the Establishment Clause, and discussed the confusion he believes the test resulted in. He wrote that it “produced more questions than answers” and was an “anomaly” and a “mistake.” The justices on the court haven’t yet officially overruled the Lemon test, but there are two more religious liberty cases before the court still pending (Carson v. Makin, involving funding to religious schools, and Kennedy v. Bremerton, involving school-sponsored prayer).
It is also not news that precedent matters very little to the Roberts Court. Since Roberts has been chief justice, over 20 cases have overturned precedent. This Supreme Court seems hellbent on overruling precedent no matter what lip service the justices pay to stare decisis in their other decisions.
This case should be seen as yet another warning that any civil right is potentially on the chopping block. This court is poised to take away a constitutional right for the first time. And it would be naive and wrong to think that the ultraconservative justices are going to stop there.
Alito tries to alleviate those concerns, writing “[a]nd to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” However, his draft provides the roadmap to undermine other constitutional rights, rights not explicitly mentioned in the Constitution, but determined to be fundamental because of the principles enshrined in various amendments. The constitutional right to birth control (Griswold v. Connecticut), right to same-sex marriage (Obergefell v. Hodges), right to sexual intimacy (Lawrence v. Texas), and even the right to interracial marriage (Loving v. Virginia), all are rooted in the right to privacy. None of these rights is mentioned explicitly in the Constitution and all of them have a considerable history of being outlawed in this country. Historical opposition to these rights has always included religious reasons; for example, the belief that marriage is between one man and one woman. If this draft opinion is the final version we see handed down in June or July, then all of these cases are at risk of being overturned. And you can be sure that the Christian nationalists are teeing up cases right now to do just that.
We cannot take Alito at his word here. Alito and his archconservative colleagues on the bench have opposed not only abortion rights, but also contraception, and same-sex marriage and intimacy. In fact, Alito has been making these arguments—that these rights lack explicit reference in the Constitution and lack historical recognition — for years, including in his dissent in Obergefell. Just two years ago in a case involving Kim Davis, the infamous Kentucky clerk who refused to issue marriage licenses to same-sex couples, Alito and Thomas wrote a statement blasting the 2015 same-sex marriage decision. They wrote: “By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the court has created a problem that only it can fix. Until then, Obergefell will continue to have ‘ruinous consequences for religious liberty.’” They portrayed Davis as a “victim” of the Obergefell decision, and warned that “those with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate in society without running afoul of Obergefell and its effect on other anti-discrimination laws.”
They’ve been setting their sights on restricting these rights since they were seated on the bench. Of course, that is why they were appointed to the high court in the first place.
It’s important to note also that the state of Mississippi actually changed its position in its petition for review at the high court in the summer of 2020 (noting that it was unnecessary for the court to overrule Roe and Casey in order to uphold the state law) so the court absolutely does need to overrule those cases in the merits brief filed in the summer of 2021. This mid-appeal change in argument was only because of the change in the makeup of the bench, namely Justice Barrett’s appointment after Justice Ruth Bader Ginsburg’s death. All this to say, that Christian nationalists are seizing on these opportunities this federal bench presents.
5. The Supreme Court is broken.
The leaked draft opinion proves what we’ve known for a while: The Supreme Court is broken. The court is supposed to safeguard the rights of minorities who cannot and should not rely on the legislative process for protection. However, it’s been taken over by Christian nationalists, who have radical views on religious liberty, and who are rapidly redefining the First Amendment in ways that expand Christian privilege and erode the wall of separation between state and church. This draft opinion illustrates just how far the court is willing to go in these endeavors. Its use of the “shadow docket” to transform law without full briefing or argument demonstrates it does not care about playing by the rules we’ve all learned in law school and in practice. The court lacks legitimacy. It has become 100 percent results oriented and politically motivated. And it needs to be reformed now.