Asserting that fetuses have rights, draft opinion could lead to abortion ban even in states like Mass., experts warn

Draft appears to refer to fetuses as human beings, granting rights

A demonstrator held a sign with pictures of Supreme Court Justices Clarence Thomas, Brett Kavanaugh, Samuel Alito, Amy Coney Barrett, and Neil Gorsuch outside the Supreme Court on Tuesday.Jacquelyn Martin/Associated Press

The strongly worded legal language used in the draft Supreme Court opinion that appears to overturn nearly 50-year-old abortion-rights protections could provoke conservative efforts to enact a universal, nationwide abortion ban, according to legal and policy analysts on both sides of the political debate. They say the case has already galvanized advocates who want a federal law criminalizing abortion.

The Supreme Court, based on the draft opinion, appears set to not only uphold a controversial Mississippi law banning abortions after 15 weeks of pregnancy but also overturn the landmark 1973 Roe v. Wade decision that protected a person’s right to abortion. The court opinion suggests the question over abortion restrictions should be legislated at the state level.

The draft opinion was written by conservative Justice Samuel Alito and leaked to Politico, and legal analysts say it remains unclear whether the language will survive in a final court opinion. Even if it does, the ruling itself would not necessarily affect liberal states such as Massachusetts, which have built what are known as Roe protections of abortion rights into state law.

But the legal arguments cited in Alito’s opinion could give political momentum to efforts to enact a federal abortion ban similar to what Mississippi enacted — or, potentially, even more restrictive — on the grounds the fetus is an unborn human being with its own rights. Attempts to pass a federal ban have been proposed before but always failed under the protections of Roe v. Wade.

In his ruling, Alito argues a woman has no constitutional rights to an abortion and suggests that fetuses deserve protection. A federal ban based on the ruling could set up legal challenges of state laws that protect an individual’s right to decide. Massachusetts’ Constitution grants far broader legal rights than the federal Constitution allows, say legal observers, who point out the state was the first to legalize same-sex marriage. But federal law trumps state law.

“The court ruling signals to those in Congress that it’s providing a blueprint for those who want to take away the reproductive rights of all people,” said Carol Rose, legal director of the American Civil Liberties Union chapter in Massachusetts. “It suggests Justice Alito is providing something of a legal road map for people trying to criminalize abortion.”

Priscilla Smith, a former litigator in reproductive rights issues who now runs Yale Law School’s Reproductive Rights and Justice Project, said Alito appears to be “putting all the bread crumbs on the trail,” for what she called the decades-long conservative effort to ban abortion.

“This opinion is as outrageously conservative and extreme as it could get,” she said.

Here, according to Rose and Smith and other analysts, are the key concerns among abortion rights advocates with Alito’s draft opinion:

— The justice, and others who appear to be joining in on a majority decision, argue that there is no right to abortion spelled out in the Constitution, rejecting the argument — granted in Roe v. Wade — that a woman’s right to choose is an inherent, fundamental right built into broad due process rights to liberty. Alito’s determination, legal analysts say, undercuts the same legal principles that have affirmed other rights, such as the rights of people to choose whom they marry, or have sex with. Smith accused the court and antiabortion advocates of “cherry-picking” which fundamental rights they want to challenge, arguing that many rights are widely accepted even though they are not built into the Constitution.

Harvard legal scholar Laurence Tribe wrote on Twitter: “If the Alito opinion savaging [the Roe decision and similar cases] ends up being the opinion of the court, it will unravel many basic rights beyond abortion and will go further than returning the issue to the states: It will enable a GOP Congress to enact a nationwide ban on abortion and contraception.” Tribe added, “Predictable next steps after the Alito opinion becomes law: a nationwide abortion ban, followed by a push to roll back rights to contraception, same-sex marriage, sexual privacy, and the full array of textually un-enumerated rights long taken for granted.”

— Alito appears to refer to fetuses as human beings as a matter of traditional and common law and refers to a fetus as an “unborn human being,” which could give constitutional rights and protections to the fetus and set up legal challenges of state laws that do protect abortions. He refers to a fetus as being destroyed by abortion rights. Rose said the opinion fails to discuss the viability of a fetus. “They don’t distinguish whether you’re pregnant for one day or 24 weeks,” she said.

— The judge also appears to follow the originalist legal theory that matters not involving federal constitutional law should be decided by the states, writing, “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” But legal analysts say that reference to elected representatives, rather than state officials, opens the door for a Republican-controlled Congress to get involved. “This is not an originalist document, it’s an ideological document,” Rose said.

— The opinion would effectively call for what is legally known as a “rational basis for review” of future abortion restrictions, which is considered the lowest level of legal scrutiny, and it allows for little consideration of a person’s reproductive rights and factors an individual must consider in choosing whether to have an abortion. “It never talks about pregnant people’s bodily integrity, or autonomy, or forcing somebody to go to term. That’s really the huge shift,” Rose said.

Elizabeth Smith, director of state policy and advocacy of the Center for Reproductive Rights, an advocacy organization, said in a statement that, “Any scenario in which Roe v. Wade is overturned would open the door to a national ban — and we know that is the ultimate goal of the anti-abortion movement. For them, overturning Roe is just the beginning. They are determined to ban abortion in every state in the US.”

On Tuesday, antiabortion advocates celebrated the indication that the court will overturn Roe v. Wade, saying the decision will appropriately return the question of abortion restrictions back to state legislatures.

“The American people have the right to act through their elected officials to debate and enact laws that protect unborn children and honor women,” said Marjorie Dannenfelser, president of the Susan B. Anthony List, an antiabortion organization. “If Roe is indeed overturned, our job will be to build consensus for the strongest protections possible for unborn children and women in every legislature.”

Sue Liebel, state affairs director for the Susan B. Anthony List, said her organization has advocated for abortion restrictions similar to the one enacted in Mississippi and other “heartbeat bills” that would prevent abortions after a fetus has registered a heartbeat, which could occur after six weeks of pregnancy.

That advocacy could include a push for a nationwide ban, Liebel said, though she noted the political challenges of seeing a federal ban pass in the current Congress. That’s why the decision over abortion restrictions should be left to the states, she said, asserting that Democrats are scrambling to pass their own “extreme” bill allowing for abortions nationwide; a proposed Women’s Health Protection Act, which would ban unnecessary medical restrictions across all states, has already been approved by the House and sits in the Senate.

Liebel said “tensions are high” over the debate, and she expects the matter will dictate Washington politics right up until the fall midterm elections, as Republicans and Democrats battle over control of Congress.

“I think the momentum is showing that the pro-life movement is growing,” she said. “I do believe the momentum is shifting.”

Independent public polls show that a majority of Americans support abortion rights and oppose the Supreme Court overturning Roe v. Wade.