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Leaks, abortion as a ‘fundamentally different’ issue than same-sex marriage and more: What does the Supreme Court draft opinion say about the future?

UPDATED: Wed., May 4, 2022

This artist sketch depicts Mississippi Solicitor General Scott Stewart speaking to the Supreme Court on Dec. 1.  (Dana Verkouteren)
This artist sketch depicts Mississippi Solicitor General Scott Stewart speaking to the Supreme Court on Dec. 1. (Dana Verkouteren)

The leaked draft decision indicating the Supreme Court’s conservative majority’s position on abortion has implications on issues tied legally to the landmark Roe v. Wade decision, including same-sex marriage and contraception.

Those implications will likely not be clear until a final decision is rendered before the court recesses at the end of June, local legal and court experts said Tuesday.

“It could be that a number of members of the court circulated draft opinions, and this is the only one that’s been leaked,” said Shaakirrah Sanders, a professor of law at the University of Idaho specializing in individual rights and liberties and constitutional law. “So, I’m not quite sure we’d be able to glean from this until the original opinion comes out.”

Still, the opinion first published by Politico and confirmed Tuesday by Chief Justice John Roberts as authentic shows the thinking of the court’s conservative wing, said Cornell Clayton, director of the Thomas S. Foley Institute of Public Policy and Public Service at Washington State University. If it was circulated to all members, it was likely far enough along in the deliberative process to permit any dissenters to counter its arguments, added Clayton, whose published research includes examinations of the nation’s highest court and how opinions are written.

The leak has shattered norms and is likely to prompt changes to the way the panel conducts business, Cornell and others said.

“For Roberts, it’s a problem, because he’s worked and is working very hard to maintain the sense of the court as an apolitical body,” Clayton said.

The 98-page draft opinion, which is not signed by any other justices but is labeled as “the opinion of the court,” strikes down the 1973 landmark decision in Roe v. Wade and the subsequent affirmation of the right to an abortion contained in 1992’s Planned Parenthood v. Casey. Justice Samuel Alito, who is identified as the author of the opinion, rejects the argument that a privacy right implicit in the Constitution in previous rulings applies to the right to terminate a pregnancy, kicking back to the states the question of whether to outlaw or restrict abortion.

“Roe was egregiously wrong from the start,” Alito wrote.

Alito does make a distinction between his reasoning for striking down Roe and other rights that have been affirmed based on privacy.

“Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called ‘fetal life’ and what the law now before us describes as ‘an unborn human being,’ ” Alito wrote.

Sanders said it’s difficult to determine from that passage alone whether such a distinction would be made in future decisions of the court. Who joins that opinion, and whether the idea makes it into the final decision, will be telling, she said.

“Of course, there are a number of members of the court who don’t believe privacy exists as a substantive right,” she said. “Many of those members of the court agree also that Roe was wrongly decided. Again, it’s going to be pretty difficult to make any predictions off a draft opinion.”

While Alito writes that abortion is different than other rights recognized in past court decisions, that’s not set in stone, said Mary Pat Treuthart, a professor of law at Gonzaga University who was not speaking on behalf of the institution.

“Can we rely on that? No,” she said.

Alito may be looking for a judge to join the opinion who’s willing to strike down the federal right to an abortion, but doesn’t want to go so far as to eliminate other implicit privacy protections, said Richard Seamon, Sanders’ colleague at UI’s School of Law. He likened the draft to a kind of “opening bid” that’s in an effort to attract judges to his position, a process that’s usually out of the public eye.

“I think you have to be extremely careful about trying to read the tea leaves,” he said. “Given that this is a first draft, it’s very likely to represent just one justice’s take.”

There are instances in which a concurrence, written as a supplement to the official decision but upon whose approval a majority vote is necessary, has become controlling, Seamon said, and effectively narrowed the scope of a court’s order. Such opinions could require certain provisions in state laws prohibiting abortions, Sanders added.

Alito’s opinion says that, if a right is not mentioned explicitly in the Constitution, it must be rooted in “our Nation’s history.” What history that analysis is based on, whether English common law or early American rulings, will also be telling, Sanders said.

“We know for sure that some women just had absolutely no control over their reproductive lives. Children could be taken from them at birth and sold into bondage, that they could be taken and put into separate homes,” she said. “In terms of the type of abusive treatment of women at that time, it is very likely that that could have caused some termination of pregnancies.”

Treuthart doesn’t think it’s likely the final court opinion will be similar to the draft released Monday.

“I would be surprised if this decision, in this form, shows up anymore,” she said, “and I’m not saying it won’t, but I would be surprised if the majority opinion in this case turns out to be what Alito has written.

“I think there’s so much controversy, and to say something is egregiously wrong, that’s very strong language.”

Staff writer Arielle Dreher contributed to this report.

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