How can nearly 50 years of legal precedent, 50 years of an established right, simply be swept away overnight?
Yes, the leaked draft of a US Supreme Court opinion is just that — a draft, its authenticity confirmed Tuesday by Chief Justice John Roberts. Indications are, however, that a majority of the justices are ready to sign on to an unprecedented rollback of reproductive rights across the nation.
Draft opinions are, of course, subject to change and to shifting alliances among the justices. Long before they see the light of day, they are intended to persuade fellow jurists of the rightness of their legal reasoning.
The leak of the draft is itself without precedent and is damaging to the court and its handling of what was always expected to be a difficult and controversial case.
The document, a first draft circulated to members of the court by Justice Samuel A. Alito Jr. back in February, deals with Dobbs v. Jackson Women’s Health, a case related to a Mississippi law banning abortions after 15 weeks — a case expected to be decided by the high court by early June. But Alito clearly opted to use the case to sweep away the protections for women afforded by the court’s 1973 decision in Roe v. Wade.
That may be persuasive to the court’s new conservative majority, but it is horrifying to those who believe a right that has stood for 50 years, that has been settled law, could be so cavalierly overturned.
“The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision,” Alito writes.
Stare decisis, the legal doctrine that requires courts to follow established precedent, “does not compel unending adherence to Roe’s abuse of judicial authority,” he writes. “Roe was egregiously wrong from the start.”
The draft opinion adds: “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
Well, fortunately for those of us in Massachusetts, lawmakers here, foreseeing the day when a new court majority would take that route, prepared well and voted in late 2020 to codify the protections for reproductive rights won under Roe.
But in 13 states, which have passed so-called “trigger laws” that will automatically ban abortions in the event Roe is overturned, women are not so fortunate. In all, at least 23 states would restrict abortions if the court adopts Alito’s reasoning in its final opinion.
That will require that in addition to Justice Clarence Thomas, the three newest members of the court —Justices Neil M. Gorsuch, Brett M. Kavanaugh, and Amy Coney Barrett, all appointed by President Trump — would also have to agree, as indicated in the original Politico report.
And that would leave Republican abortion-rights supporters, like Senators Susan Collins of Maine and Lisa Murkowski of Alaska, to ponder the wisdom of their choices and perhaps their political naivety.
“If this leaked draft opinion is the final decision and this reporting is accurate, it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office,” Collins said in a statement. Murkowski told reporters, it “rocks my confidence in the court right now.”
Murkowski is certainly not alone in that assessment. However, more than most, Collins and Murkowski should be examining their own consciences in the days ahead: Collins ignored warnings that she was putting Roe in danger by voting to confirm all three; Murkowski voted for Gorsuch and Barrett.
Now, as Roberts reminded in his brief statement on the issue, the draft opinion “does not represent a decision by the Court or the final position of any member on the issues in the case.”
But just as clearly, as Politico reported, the draft represented the opinion of a court majority that had not changed since the case was heard in December.
And if that majority holds, it will put this nation on the proverbial slippery slope where what had been a fundamental right one day — the right to privacy (the basis of the Roe decision), to marry whom we choose, the right to vote and to travel, the host of unenumerated yet precious rights — will be at risk.
Just ponder for a moment the rights to which, in the words of Alito, the “Constitution makes no reference,” and contemplate the dangerous road ahead.
A functioning Congress committed to protecting reproductive rights, but also those broader rights endangered by Alito’s brand of thinking, would step up — even before the court issues its actual ruling in the Mississippi case and even if that means throwing the Senate’s filibuster rule out the window.
The slow but steady erosion of rights is no small matter. In the event the leaked draft opinion becomes a finalized ruling, Congress and individual state legislatures must find the political courage to protect rights that the court will not.
Editorials represent the views of the Boston Globe Editorial Board. Follow us on Twitter at @GlobeOpinion.