E79: Analyzing the leaked draft overturning Roe v. Wade with Amy Howe and Tom Goldstein

The Leak and Immediate Context

• A leaked draft of the Supreme Court's opinion in Dobbs v. Jackson Women's Health Organization was published by Politico, revealing an intention to overturn Roe v. Wade and Planned Parenthood v. Casey.
• The 67-page draft opinion was authored by Justice Samuel Alito and circulated in February, prior to the final decision expected in late June.
• The leak was analyzed as a potential signal to motivate progressive forces or a strategic move to hold Justices Gorsuch and Kavanaugh accountable for their confirmation testimony regarding "settled law."
• The draft opinion posits that the right to an abortion is not "deeply rooted" in the nation's history or tradition, characterizing it as a "profound moral question" to be decided by states and their representatives rather than the Constitution.

Legal Framework and Doctrinal Shifts

• Stare Decisis Application: The draft argues that the principle of stare decisis (adherence to precedent) is at its weakest when applied to constitutional interpretation, allowing the Court to overturn past decisions deemed "egregiously wrong."
• Critique of Undue Burden: Justice Alito rejects the "undue burden" standard established in Casey (1992), describing it as "workable" only in name and arguing it has led to inconsistent lower court rulings.
• Historical Analysis: The opinion asserts that at the time the 14th Amendment was ratified (1868), abortion was a crime in the majority of states and there was no constitutional right to the procedure.
• Originalism vs. Progressive Constitutionalistism: The discussion highlighted the clash between originalist interpreters (who argue the Constitution should be read as understood in 1791/1868) and progressive constitutionalists (who view the document as adaptable to modern societal norms like bodily autonomy).
• Constitutional Amendment Impossibility: Guests noted that passing a constitutional amendment is currently infeasible due to the high hurdles of supermajority requirements in Congress and the states, leaving the Supreme Court as the primary arbiter of unenumerated rights.

Implications for Precedent and Other Rights

• Substantive Due Process: Roe and other rights rest on the same doctrinal foundation as Obergefell (same-sex marriage) and Loving v. Virginia (interracial marriage); the draft opinion's reasoning theoretically undermines all of these.
• Alito's "Carve-Out": While the reasoning in the draft could apply to other rights, Justice Alito explicitly states that the opinion is limited to abortion and that Obergefell and Griswold (contraception) are not currently at risk, likely to maintain a five-vote majority on the bench.
• Risk of Further Litigation: Legal experts warn that overturning Roe may invite new challenges to Obergefell, Loving, and Griswold in lower courts or by state attorneys general, even if the Supreme Court has not yet voted to overrule them.
• Statutory vs. Constitutional Rights: The panel distinguished between statutory protections (e.g., Bostock v. Clayton County regarding LGBTQ employment discrimination under Title VII), which can be protected by Congress, and constitutional rights, which require Supreme Court validation.

Political and Institutional Dynamics

• Judicial Strategy: The decision is described as the culmination of a 50-year conservative strategy to appoint justices willing to reject the "judicial activism" associated with Roe, a goal reinforced by Donald Trump's 2016 pledge to appoint specific nominees.
• Confirmation Hearing Disputes: Controversy exists over whether Justices Kavanaugh and Gorsuch misled the Senate by calling Roe "settled law" while privately preparing to overrule it, though defenders argue they correctly stated precedent is not immune from overturning.
• Perception of Legitimacy: The leak and the decision have intensified public perception that the Supreme Court is a political body, with some analysts suggesting the Court lost its "non-political" status during the tenure of Justices Souter, Stevens, and Kennedy who previously provided moderate, cross-party votes.
• Incrementalism Debate: Chief Justice John Roberts was reportedly advocating for a narrower decision upholding the Mississippi law without formally overruling Roe or Casey, but a majority of the conservative bloc appeared willing to take the more aggressive approach.
• Term Limits Discussion: The panel debated the concept of 18-year term limits for Supreme Court justices as a potential solution to lifetime appointments, noting it would require a constitutional amendment and is currently viewed as unlikely without a crisis involving a justice's fitness.

Future Trajectory and Public Response

• State-Level Fragmentation: Following a potential overturn, approximately 12 states have "trigger laws" ready to ban abortion immediately, while roughly 25 states will likely maintain legal access, creating a patchwork of laws across the US.
• Legislative Compromise: Experts predict that returning the issue to state legislatures will force a compromise between the 48% of Americans who want restrictions and the 32% who want it legal under all circumstances, moving away from the absolutist positions previously held due to Supreme Court preemption.
• Federal Legislative Gridlock: Democrats in control of Congress are unable to codify abortion rights into federal law solely because of the Senate filibuster, leaving the issue to be resolved at the state level.
• Public Sentiment: Polling data cited indicates a near-even split between "pro-choice" and "pro-life" identities (49% vs 47%), though a plurality (48%) supports abortion under "certain circumstances," suggesting a potential middle ground for future legislation.
• Comparison to International Standards: The draft opinion noted that only six countries (Canada, China, Netherlands, North Korea, Singapore, Vietnam) permitted non-therapeutic abortion on demand after 20 weeks, highlighting a divergence between US legal history and global trends.
• Future Outlook: Analysts foresee a "messy" quarter-century of litigation and political maneuvering in battleground states, with the hope that the democratic process eventually leads to a stable consensus similar to that in other Western nations.