In an unusual leak from the U.S. Supreme Court, a draft memo written by Justice Samuel Alito, shows the Court poised to overrule the landmark 1973 decision Roe v. Wade, which makes abortions legal throughout the U.S. Here, Constitutional law scholar Professor Bernadette Meyler, discusses the leaked Dobbs v. Jackson Women’s Health Organization memo and the implications of a possible decision.
Assuming that the leaked memo is accurate, what is the legal justification provided by Justice Alito for overturning Roe v. Wade and Planned Parenthood v. Casey?
Justice Alito’s opinion examines the basis for the right to choose an abortion as though it were an undecided question and asks whether the right can be anchored in the 14th Amendment’s Due Process Clause. Following an inquiry established by an earlier case, he asks whether the right is “deeply rooted in [our] history and tradition” and “essential to our nation’s ‘scheme of ordered liberty.’”
Rather than examining whether a right to bodily or decisional autonomy, broadly conceived, fits the description of being deeply rooted in history and tradition, Alito instead looks specifically at whether the right to procure an abortion was protected. His analysis resembles the late Justice Scalia’s in a case called Michael H. v. Gerald D., in which a biological father was attempting to get visitation rights with his biological child. In that instance, Justice Scalia asked whether there was a common law tradition of protection of the rights of a natural father outside of wedlock rather than a more general tradition of protecting paternal rights. With that narrow description of the right, the answer was no. Alito similarly concluded that there was no historically protected right to obtain an abortion.
Importantly, Alito relies more on state prohibitions of abortion from the 19th century, around the ratification of the 14th Amendment, than on common law from the time of the founding, because states became more rather than less restrictive during the course of the 19th century. Under common law, “quickening,” which occurred around the fourth month, was generally the point at which causing an abortion was criminalized. Some 19th-century statutes criminalized all abortion. Hence Alito adopts the most restrictive history as the main backdrop for his opinion.
To put the logic of Alito’s opinion in perspective, if we were to go back to the common law generally as determining the scope of liberty interests around personal autonomy, we would probably roll back the constitutional protections announced for consensual sodomy in Lawrence v. Texas (2003) as well as same-sex marriage. Furthermore, we would return to many other conditions that we would abhor today, including coverture, or the rule that the legal rights of a married woman were subsumed to those of her husband. As William Blackstone summarized that doctrine, “the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband.”
Only after examining the right to obtain an abortion as though it were about to be newly established does Alito’s opinion turn to the reasoning about why the Court’s precedents in Roe and Casey should be overruled. He applies a multi-factor test in reaching the conclusion that they should be overturned. Notably, he refers several times to Roe as “egregiously wrong.”
Is it significant that the Court is overruling not one but two of its previous decisions, and decades of law? Should we be concerned about other federal rights, such as same sex marriage? Are these at risk of going back to each state?
Alito attempts to justify overruling Roe and Casey by looking to other decisions of the Supreme Court that have overruled prior precedents, such as Brown. However, the breadth of his opinion makes me quite worried about whether the entire line of cases protecting privacy rights could be overturned. Implicitly undermining the idea of a right to privacy, Alito states that “Roe . . . was remarkably loose in its treatment of the constitutional text. It held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned.” Contraception was the first such right protected as a right to privacy, and, as scholar Melissa Murray has argued, a decision to overturn Roe may have implications for the constitutional protection and availability of contraception as well.
While same-sex marriage was constitutionally protected as part of a broader “liberty” interest, Alito’s effort to distinguish cases like Obergefell are half-hearted, at best. In particular, he states that “None of the other decisions cited by Roe and Casey involved the critical moral questions posed by abortion.” According to whom? If the existence of critical moral questions is enough to undo a right, then I am not sure which other rights would be immune.
If the Supreme Court does indeed overturn Roe v. Wade, what will that mean for women in the U. S. seeking abortions? The decision says that it is putting this back to the citizens of each state, but are the rights of women in more liberal states at risk too?
If the rights of women in some states are curtailed, it will affect women in every state. I worry about the message that this decision will send to the girls and young women coming of age today about the extent to which their lives and decisions are valued. Our country has made great strides toward gender equality, and this opinion—which entirely dismisses any equality-based reasons for protecting a right to choose an abortion—will substantially set us back.
How will this Court’s decision impact women living in conservative states such as Texas, where a recent law encourages citizens to turn in women who are seeking abortions? Could residency matter, and a woman from Texas who obtains an abortion in California be prosecuted in her state of residency?
There is a constitutionally protected right to travel that should continue to permit women to travel to other states for the purpose of obtaining abortions. While it is possible the Supreme Court could overturn the precedents protecting that right to travel, such a determination would have far-ranging implications beyond abortion—ones that those supporting Alito’s opinion in Dobbs might be unwilling to incur.
Professor Bernadette Meyler is a scholar of British and American constitutional law and of law and the humanities. She is also a 2020 Guggenheim Fellow in Constitutional Studies. Her research and teaching bring together the sometimes surprisingly divided fields of legal history and law and literature. They also examine the long history of constitutionalism, reaching back into the English common law ancestry of the U.S. Constitution. She is the author, most recently, of Theaters of Pardoning (Cornell UP, 2019). She is the Carl and Sheila Spaeth Professor of Law and Associate Dean for Research and Intellectual Life at Stanford Law School and Professor, by courtesy, of English at Stanford University.