In an unusual leak from the U.S. Supreme Court, a draft memo shows the Court has decided to overrule Roe v. Wade, the landmark 1973 decision which made abortion legal throughout the U.S. What does this mean for women seeking abortions in the U.S.? Are other rights, like same-sex marriage under threat? And what does this say about the politicization of the Court? Constitutional law expert Bernadette Meyler joins this episode to discuss these questions and more.
This episode originally aired on SiriusXM on May 7, 2022.
Rich Ford: From Stanford University and SiriusXM. This is Stanford Legal. I’m Rich Ford.
Joe Bankman: And I’m Joe Bankman. Today we’re talking with our colleague, Bernie Meyler, about the recently released draft opinion from the Supreme Court that’ll have a major impact on abortion rights.
The day has finally come that some of us were dreading and others of us were so looking forward to. It looks like Roe v. Wade and its progeny, which legalized abortion is a matter of constitutional rights, their dead.
Ford: We all anticipated this. And even if we didn’t know exactly when it would happen, given the composition of the court, it’s not surprising. And yet still, I think it’s the end of an era, in a sense. And so there’s also a sense of disbelief despite the fact that I think most observers really saw it coming.
Bankman: And what were your thoughts, Rich, when you read the opinion and heard about it and realized it is a new era?
Ford: There was still a sense of shock, despite the fact that I knew this was coming and thought it was likely coming this term. Part of the shock was because this was a leaked opinion and so it came earlier than I expected to see it. And I also thought there was a chance that there would be some narrower ruling on this, given how long Roe has been precedent. I mean, there’s still a little bit of shock, although also, yeah, saw that coming. How about you?
Bankman: I was a little bit surprised by the opinion itself. It’s an angry, contemptuous opinion. Apart from the legal arguments, which have been around for a long time, and I think that the legal world is frankly divided like the rest of the world is. Most of the legal world is on the progressive side, on the left side, supporting Roe, but Roe’s always had its critics, even among many who would vote for legalized abortion. But what surprised me is how angry and contemptuous the opinion was. It really spoke to a movement that has really crested and made me wonder whether, in an odd way, an opinion that went against a certain segment of America actually fueled a lot of anger and a lot of power. And maybe we’ll see the flip side of that now that we’re in this new era of restrictions on women’s right to abortion.
Bankman: But whatever we think, Rich, today we’re having somebody who’s studied this more than we have, our terrific colleague, Bernie Meyler, to talk to us about how she regards this opinion and what it means. Bernie, welcome to the show.
Bernie Meyler: Thanks so much for having me today, Joe and Rich.
Bankman: Can you give us some background about the decision and what the court is saying and what’s new about it?
Meyler: Absolutely. So this leaked opinion from Justice Alito is an early draft of an opinion that apparently is poised to overturn Roe and Casey, which had reaffirmed the precedent of Roe several decades later. The main thrust of the opinion is to suggest that the right protected by Roe, the right to obtain a lawful abortion, is not in the constitution and is not protected by the tradition of our country or the legal traditions that we adhere to. And the opinion first outlines the reasons why it does not find that right within the constitution or in the history and tradition of our country.
And then it proceeds to consider, under a number of different factors, whether Roe and Casey should be overruled. In that context, it calls the decision wrong from the beginning and several times refers to the Roe decision as egregiously wrong, as well as thinking about some other factors that the court usually applies when it’s thinking about whether cases should be overruled or not, or whether stare decisis should apply.
Ford: So the court has now overruled Roe and repudiated the right to reproductive liberty for women. Bernie, you said the court found that the right had no basis in the constitution. Can you tell us a little more about why they decided that given that earlier courts did find that it was in the constitution? Is it that there’s nothing specific enough in the constitution, or do they have more to say about why those earlier courts that decided Roe and Casey were, in their view, incorrect, egregiously wrong, as you put it.
Meyler: First Alito, which is consistent with his approach as a textualist originalist, looks to the text of the constitution. And he says 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. So he flags that these rights aren’t mentioned in the text of the constitution and seems to be criticizing that. Although he does acknowledge that there may be certain rights that don’t flow directly from the text of the constitution.
But when he turns to that inquiry about rights that aren’t explicitly protected in the text of the constitution, he looks to an earlier case, Washington against Glucksberg, which had an opinion by Justice Rehnquist and said that, in order to find a right of liberty that’s not explicitly mentioned in the text, the court has to look to whether that right is deeply rooted in history and tradition and whether it’s essential to the nation’s scheme of ordered liberty. Now, that question of what is deeply rooted or not is a very difficult one to apply, that standard of deeply rooted, because you could say, well, is it the general right that’s deeply rooted? Is it a right to autonomy over your body that’s deeply rooted in the tradition of our country? Or is it a right to autonomy about decisions about having children or creating a family? So when we think about liberty interests and privacy interests in that kind of broad frame, we might look to a whole swath of precedence from American history that would suggest that there are these autonomy rights or liberty rights that have been present within our tradition.
Alito here takes a extremely narrow approach and says, no, we have to look at whether abortion in particular was protected legally. And he says, well, under common law, it wasn’t protected. And then he turns, especially to the statutes in the states at the time of the 14th amendment, which is the source of the due process clause, which protects the right to privacy and says, well, statutes at the time of the 14th amendment in particular, basically prohibited abortion. Interestingly, he has to rely more on the 19th century than even the 18th century because under common law in the 18th century, abortion was generally not criminalized until the time of quickening, which was generally the fourth month of pregnancy.
Bankman: So it’s a lot about how you frame the question. Where for Alito, and a lot of textualists and conservatives, at least on this issue, the question is going to be framed very narrowly. Let’s look for the word abortion, for example, and for Stevens and people that have supported Roe through the years it’s a broader question, whether there’s a sphere of autonomy and that broader question allows changing notions of what autonomy might mean.
Meyler: Absolutely. And I would say that you don’t even have to look as far to the left as Stevens has been perceived, you can even look at the former justice Kennedy’s decisions in cases like Lawrence and Obergefell and a lot of cases where he emphasized the dignity and liberty interests involved in defining your personal relationships and being able to make a life plan. So he looked at those liberty interests quite broadly, unlike someone like former Justice Scalia, who was known to really quite narrowly understand liberty interests.
And I would say that this opinion reminds me a lot of the opinion that Justice Scalia wrote in a case called Michael H against Gerald D, which involved the rights of a biological father to have visitation over a child. And in that case Scalia said, well, we have to look not at just paternal rights more generally, but we have to look at whether non-marital fathers who were biological fathers traditionally had rights. And he said, no, under common law, there was a presumption of legitimacy and that undermined any rights that non-marital fathers would have. So to me, this opinion that Alito penned really resonates with that kind of logic.
Bankman: Let’s focus a second, Bernie, on this as an opinion. What we have is a draft. Walk us through the state from what we see now to what’s going to come out. And tell us if you think what we see is what we’re going to get?
Meyler: Yes. Well, I think one of the bizarre and kind of interesting aspects of this leak is that this opinion was a quite early draft. It was from several months ago. So we don’t even know where the case sits now, nevermind where it will sit when the court issues the opinion.
My reading of this draft is that it’s still very much in Alito style, that other justices haven’t weighed in entirely to temper the language. The language reads to me more like a dissent and it’s somewhat extreme and caustic in its terms and tone. And I would believe that at least the language would be significantly tempered by other justices. At the same time, I think that probably Chief Justice Roberts is working behind the scenes to try to limit the scope of the holding as well. We know that this opinion would overrule Roe and Casey, but the way it’s drafted also has extremely broad implications for a right to privacy, more generally, as well as a number of other unenumerated rights. So I think that Roberts and maybe other justices who would be in the majority are probably working to modify the breadth and the scope of the holding.
Ford: Well, I was going to ask you about that, Bernie, because given the way you describe this draft where a right that wasn’t… it’s either unenumerated or wasn’t found deeply rooted in the traditions, can’t be found in the constitution, does that have implications for rights like the right to same sex marriage? That’s the first one that comes to mind, but I could imagine many others that also would seem to be on the chopping block.
Meyler: I think it absolutely does have implications for those other rights. And I would say in particular, given the way that the opinion talks about rights to privacy as unmoored from constitutional text, I would say that most of the cases involving rights to privacy in particular would be subject to potential overruling.
Now, Alito explicitly tries to head off that idea by saying, oh, some will interpret this as broader than it is. It’s just about the abortion right. And here, there are serious moral questions at issue unlike in other cases. Now the serious moral question has to do with what he’s talking about as the interest in the life of the fetus. But I think once you start talking about serious moral questions and that serious moral questions are in play in some cases but not others, I think that opens the door for those moral questions to arise in a number of other situations. And in particular, I think that contraception, which he doesn’t talk at all really about the Griswold case, which was the basis for Roe and which found the right of privacy that Roe relies on, but Griswold protected the availability of contraception. I’m not sure how that will be perceived to be so distinguishable from Roe in future instances.
And then also I think the same sex marriage cases and as well as the sodomy case, Lawrence, could be in question as well. Now, where I think that future litigants might be able to distinguish the same sex marriage cases from this precedent might be by claiming a greater equality and equal protection interest. Because in particular, those cases were kind of argued both on equal protection and due process grounds. A lot of people think that it was because Justice Kennedy was a fan of the due process liberty idea that they were decided on due process as opposed to equal protection, but they could just as easily have been decided on equal protection grounds and that might be more palatable to some of the members of the majority in the current case.
Ford: Well, that raises another question about the right to reproductive liberty, which is, there is an issue of equality involved in this, right? There’s very much a case about the rights of women. And we’re talking about regulating a procedure that only women undergo or need. Does that weigh at all in this leaked opinion?
Meyler: That’s one of the most troubling parts, I think, about the opinion, is that there’s almost no attention given to that consideration. There is a mention in a paragraph of the possible equal protection grounds that had been raised by litigants, and that’s immediately dismissed and dismissed with reference to another 50 year old case, the Geduldig case, which found that pregnancy based discrimination wasn’t discrimination by sex under the constitution. Here he follows that logic and says, there’s nothing to see here with respect to gender equality. This isn’t a case about gender equality.
Now, I think that’s a particularly troubling reasoning and line of reasoning in light of the fact that he’s looking to these cases from the 19th century and cases under the common law, when women were subject to a number of legal disabilities and weren’t treated in any way equally with men. Remember that all of these are before the 19th amendment, which granted women more rights under the constitution and looking to the common law tradition, that is at a moment when coverture or the idea that women’s rights legally were extinguished and subordinate to their husbands under marriage was still in place. So if we are thinking about these historical examples and this history as governing what should be the rights of women today, we might bring to bear an analysis about the inequality of the application of rights at that moment, but that never comes up in the opinion.
Bankman: You know, one of the things I noticed looking at the opinion quickly, Bernie, is that depending on the pagination, something like a 65 page opinion with footnotes, but the equal protection analysis is really a few sentences. There’s almost none of that. So the opinion to the extent it… And it’s well written, I may say I, in the sense of, does it take you along? It has a power of its own, but none of it is devoted to equality or gender.
Meyler: That’s exactly right.
Ford: More with Bernadette Meyler next on SiriusXM business radio channel 132.
Ford: Welcome back to Stanford Legal on SiriusXM. We’re here with our colleague, Bernie Meyler, talking about the Dobbs case that appears to, the leaked brief that appears to overrule Roe v. Wade. Bernie, I wonder what does this… Assuming this leaked brief does represent the opinion of the court and Roe is overruled, what does this mean for women, particularly in states that seem poised to curtail reproductive freedoms?
Meyler: Well, it’s going to have serious consequences in terms of their ability to obtain abortions within those states. Now, states like California and others have been thinking about becoming sanctuary states for those seeking abortions, so it’s possible that people will be able to travel to neighboring jurisdictions and obtain abortions. Already there are legislative efforts afoot in some states though, to prevent or criminalize travel for the purpose of obtaining an abortion. Luckily, that involves other constitutional provisions that are less likely to, I think, be overturned by the court because they also implicate substantial interstate commerce and trade considerations, so they’re less vulnerable to attack than substantive due process argument for abortion.
Bankman: Could a state like Texas make it… they can’t make it illegal for a woman to leave Texas to California to get an abortion. That might be an expensive, difficult trip if you’re 17 and without resources. Although I understand that there are plans to fund those trips. Could Texas make it illegal to advertise that availability in Texas, that is for Planned Parenthood to say, we can’t do it here, but you can get it in California?
Meyler: I think that would implicate some first amendment considerations. It would be interesting to know exactly how that would play out. I’m not sure that that would be permissible either. And certainly even if it was legally possible, it would be pretty impractical because I don’t see that they could really prohibit dissemination via the internet or other online sources.
Ford: Speaking of online sources, reproductive technologies have changed a lot since the 1970s when Roe was decided and one way they’ve changed, that there are a lot of, not over the counter, but relatively easy to obtain pills and medications that people can get to induce an abortion in the early stages of pregnancy. How do you think this affects that given how hard it is to regulate sales over the internet?
Meyler: One thing that I think could happen on the congressional front that might be an easier step to take than to say federally protect abortion per se, would be to have legislation protecting the interstate availability of abortions by medication, so medication abortions, rather than surgical abortions. And already there have been administrative efforts to allow the interstate shipment of medications for abortion. But there’s a question of whether they’re sufficiently statutorily based, of course there’ll be challenges, so I think it would be safest to go a congressional route, if that were possible, to protect medication abortions.
Bankman: But of course, with the nation so divided on this, largely, though not exclusively, along partisan lines, I imagine any bill like that would have a tough time of passage maybe now, but certainly if, as a lot of people think, the House flips and the Senate flips in the coming election.
Meyler: Absolutely. And I think it also raises the possibility of preemption the other way. So if the House and Senate flipped would a majority then pass a law banning medication abortions or banning the interstate shipment of medication for abortions. So there are some political dangers in that approach as well.
Bankman: Are there women in states like Texas having access to abortions now? And I say that because under a set of decisions starting with Casey 20 years ago, states, with the courts approval, or at least acquiescence, have really chipped away at the availability of abortion. So is this just kind of the last step, which doesn’t have much effect or is this going to have a lot of effect?
Meyler: That’s a great question. My view is that based on the fact that facilities that will perform abortions are few and far between in a lot of these states and also the restrictions that have been imposed by the states and upheld by the Supreme Court on people performing those abortions, that probably empirically there will be not that much of a difference in terms of the number of surgical abortions that can be performed in a particular state per year. I would say that the practical effects probably are less extreme than they would’ve been, say 20 years ago when there was more widespread availability of abortion. Also rates of abortion have been declining in the past decades as well. So it’s not entirely clear what the causes of that are, but there’s definitely been a decline in that regard as well.
I would say that my biggest worry coming out of this opinion though, is both its implication for people seeking abortions in these states, but secondarily its implication for the availability of contraception and whether this… If the entire line of privacy cases that are involved in Roe and are bolstered by Roe would be overturned, whether contraception as well as abortion would be available in many places. And I think that that could have extremely widespread effects if there are more regulations against contraception that come in the wake of this decision.
Ford: Wow. Bernie there’s been there… This case has so many implications. I wonder if I could just ask you about its implications for the court more generally. We’re now seeing a new or a new approach to constitutional law become maybe the dominant approach on the courts. It’s not that it wasn’t there before, but now it seems to have a majority support on the court and that might have implications for a lot of things if we’re thinking about the constitution as something that’s kind of fixed in amber in the 18th century and ideals that can’t evolve with the times. Any thoughts about how that’s going to affect us moving forward?
Meyler: Yes. Well, I think that there’s a really interesting historical relation between Roe and the rise of originalism and the conservative legal movement as well. Because there was, I think, a simultaneous effort to raise resistance to Roe and to move towards a jurisprudence that would enable the court to overturn Roe. And I think that, in a way, in this opinion, we see the confluence of those two movements and how they’ve come together.
Originalism to the extent that it looks at a narrow view of what the original meaning of the constitution is, or the original meaning of the 14th amendment, and to the extent that it’s applied quite narrowly, can undermine a lot of different articulations of rights that we’ve had since the Warren court and going forward. So I think that the implications of this opinion are both quite widespread going forward, and then they also harken back to a very successful social movement and conservative social movement that bolstered originalist interpretations of the constitution and have led to this point.
Bankman: We’ve been talking with Bernie Meyler about the new decision, or at least a draft of the majority opinion of the new decision, in Dobbs v. Jackson’s Women Health in which apparently is overruled Roe v. Wade. The implications of this are so vast, and this is a day that some of America has dreaded it and other parts of America really look forward to. Bernie, we thank you for your time and look forward to discussing this again, as more facts and the full opinion comes out.
Meyler: Thanks for having me.
Ford: Thanks to Bernadette Meyler. I’m Rich Ford for Joe Bankman, and this is Stanford Legal on SiriusXM business radio channel 132.