Nobody will soon forget where they were when they got Monday’s news: The right of women to control their own bodies and to decide whether and when to have a child will no longer belong to them if the leaked Supreme Court opinion overturning Roe v. Wade becomes law this summer.
But there is more. Reading the draft, written by Justice Samuel Alito, you quickly learn that all the rights people have long taken for granted — like the rights to decide whom to marry, whether to use birth control, with whom to have sex, how to raise your children, and an endless list of other freedoms — will no longer be protected unless you can point to language in the Constitution expressly guaranteeing those rights, or convince five Supreme Court justices that they are “deeply rooted in this nation’s history and tradition” and “implicit in the concept of ordered liberty.”
If the right of a woman to decide whether to have a baby — a right that arises from the simple idea that everyone owns their own bodies — won’t qualify, then neither will most of the rights you have long assumed are yours. And not a word of the draft would prevent women who have abortions, or who miscarry in circumstances the state deems suspect, from being imprisoned as criminals.
The leaked opinion says not to worry because the right to abortion is unlike all other rights. After all, every abortion destroys what the state chooses to view as an “unborn human being.” But the right of a pregnant woman to carry a fetus to term is also unique. Bringing a human being into the world is unlike any other act. And, as the Supreme Court noted in its 1992 Planned Parenthood v. Casey decision, a state that claims the power to force a woman to deliver a baby despite her decision not to be a mother might as easily claim the power to force her to have an abortion to which she is adamantly opposed. Nor does the draft opinion provide any principled way to distinguish state bans on birth control methods that some view as tantamount to abortion from the abortion bans the court is poised to uphold.
Some readers of the Alito opinion assume that the legal regime it inaugurates will at least leave states free to protect abortion rights. Not so. Not a word of the opinion, and nothing in its reasoning, limits the ability of Congress to enact a law banning abortion nationwide, invoking the supremacy clause to override state laws more respectful of the rights of women.
And this might not be a two-sided coin: A court capable of doing what the Alito opinion would do is equally capable of saying that a nationwide abortion ban would represent a legitimate exercise of Congress’s power to treat abortions as commerce and accordingly ban them all, while a nationwide attempt to codify Roe and Casey to protect the liberty of women would be a constitutional overreach.
There will be time enough to dissect the tortured reasoning reflected in the Alito draft opinion. The draft asserts that the 14th Amendment’s equal protection clause is irrelevant because the fact that bans on abortion impose burdens on women that have no parallel for men doesn’t make such bans instances of gender discrimination. The reason? Wait for it: Because any such gender discrimination theory “is squarely foreclosed by our precedents.” Quite a remark in a draft devoted to trashing precedents with abandon!
The draft then turns to the 14th Amendment’s due process clause, which prohibits states from depriving anyone of “liberty without due process of law.” That clause, the draft says, prevents states not only from using unfair procedures but also from restricting certain substantive rights without unusually strong justification. Which substantive rights? Those “guaranteed by the first eight amendments” against federal as opposed to state action, plus those the court deems sufficiently “deeply rooted.” But why those limits in particular? Not a word of the Constitution’s text supports them. Indeed, the most relevant text, the Ninth Amendment, instructs that the failure of the Constitution to “enumerate” a right cannot be taken to “deny or disparage” its existence.
The draft opinion offers no way to reconcile its approach with that basic instruction. Instead, it just insists that a “constitutional right to obtain an abortion” is an invention of the past half-century with no prior “support in American law.” The draft is emphatic: “Zero. None.” But pounding the table is no substitute for reasoning, and I’m confident that the dissenting opinions to be announced when this decision is finally handed down, probably in late June, will rip the Alito assertion to shreds.
The draft is also replete with criticisms of the reasoning underlying the original Roe v. Wade opinion, including particularly sharp attacks on the significance that Roe attached to the line of fetal viability. But in quoting me to the effect that Roe’s defense of that line mistook a “definition for a syllogism,” the draft conveniently fails to note the quite different defenses I offered for drawing a line between viable and non-viable fetuses.
Theories abound about just why someone inside the court leaked this draft opinion, breaking a tradition of confidentiality as old as the court itself and important to the court’s ability to function. But time spent speculating about the leaker’s motives would seem better devoted to devising ways to help women whose lives will be upended by the grim world the draft makes virtually certain, including the victims of rape and incest, women who miscarry and are accused of having done so deliberately, and all who receive medical assistance to end a pregnancy.
Make no mistake: The body blow the court is poised to deliver to a society that aspires to breathe free will be no less brutal even if the opinion’s author is persuaded to soften its tone to avoid defections from what is bound to be an opinion speaking for a bare majority of the nine-member court, or at most a majority plus one. With or without a velvet glove, the Supreme Court is about to hit us all with an iron fist.
Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus of Constitutional Law at Harvard University. Follow him on Twitter @tribelaw.