Yesterday a stunning unprecedented thing happened. For the first time in history a draft of a Supreme Court decision leaked. You can read the draft decision, which would completely reverse Roe v. Wade, HERE. Chief Justice Roberts acknowledges the document’s authenticity while insisting “it does not represent a decision by the Court or the final position of any member on the issues in the case.” I guess that is intended to give hope, but that hope seems thin.
This has never happened before. Ever. A threshold question is whether it will remain a one time black swan event, or become a more regular occurrence. What impact would that have on the character and integrity of the Supreme Court?
The draft is a well written condemnation of Roe, and its subsequent mostly affirmation in Casey v. Planned Parenthood. “Condemnation” is perhaps too mild a term. The draft decision presents Roe and Casey as not merely wrong, but as horribly reasoned. To be sure the word “horribly” is not used, but the draft does say, “Roe was egregiously wrong and deeply damaging.”
The thrust of the 98 page draft opinion is quite simple. Rights established by the due process clause of the 14th Amendment include only those “deeply rooted in this Nation’s history and tradition.” The court then walks through the Nation’s history and tradition involving abortion and concludes that for most our history abortion was traditionally banned prior to Roe. In the words of the draft:
“The inescapable conclusion is that a right to abortion is not deeply rooted in our Nation’s history and traditions. On the contrary, an unbroken history of prohibiting abortion, on pain of criminal punishment, persisted from the earliest days of common law until 1973.” pp. 24–25.
The draft compares changing societal perceptions around abortion to views associated with assisted suicide to the court’s decision in Washington v. Glucksberg where the court held a law criminalizing assisted suicide was Constitutional:
“Attitudes towards [abortion] have changed . . . but our laws have consistently condemned and continue to prohibit [that practice].
We will return to the words reflected in those two quotes shortly. Justice Alito may well be correct in stating “a right to abortion is not deeply rooted in our Nation’s history and traditions.” After all, through most of this country’s history the tradition has been to deprive women of the most fundamental of rights. Through the majority of our nation’s history women were not even allowed to vote. The vast bulk of this nation’s history traditionally excluded women from the Supreme Court, or even going to law school for that matter. In our national history we have had 115 Supreme Court justices, five have been women. For the entirety of our nation’s history women have been traditionally excluded from office of President. Justice Alito’s argument is ultimately circular, and uses this nation’s deplorable past on women’s rights to justify the future of women’s rights.
For many the loss of abortion rights is a disaster onto itself. However, it is unlikely the damage will end there. The “right to privacy” reflected in Roe, involved protecting liberty interests of Americans to make “intimate and personal choices.” If this draft holds the court is rather clearly dispelling any notion that our Constitution offers such protection unless the matter is “deeply rooted in our Nation’s history and traditions.” Further, it must have been deeply rooted in our Nation’s history and traditions prior to the precedent being reviewed involving the “intimate and personal choices.”
In 1967 the United States Supreme Court decided Loving v. Virginia which declared unconstitutional state laws banning interracial marriages. If we apply the above language from this draft to that decision I think you can see the concern. Prior to the Loving decision state laws against interracial marriages were common. Certainly views on the subject were changing, but such laws remained common. We need only plug in that issue to the language above:
The inescapable conclusion is that a right to [interracial marriage] is not deeply rooted in our Nation’s history and traditions. On the contrary, an unbroken history of prohibiting [interracial marriage], on pain of criminal punishment, persisted from the earliest days of common law until 1967. Attitudes towards [interracial marriage] have changed . . . but our laws have consistently condemned and continue to prohibit [that practice].
Now, I could be wrong, but I don’t think even the most white dominated and racism lingering of states would actually have the stomach to ban interracial marriage. The point is that if one did the words of this draft would provide compelling argument to support the Constitutionality of the state’s doing so.
But let’s move to another issue, and a more recently decided case. It was just seven years ago that the Supreme Court decided Obergefell v. Hodges holding laws forbidding same-sex marriage unconstitutional. The decision was by a 5–4 vote and was before Trump stacked the court with a far right majority. The author of this draft, Justice Alito, was one of the dissenters in Obergefell and made the exact same arguments in that case. Noting that no state permitted same-sex marriage until Massachusetts in 2003, Alito stated, “the right to same-sex marriage lacks deep roots [and] is contrary to long-established tradition.”
To plug in our language again:
The inescapable conclusion is that a right to [same-sex marriage] is not deeply rooted in our Nation’s history and traditions. On the contrary, an unbroken history of prohibiting [same-sex marriage] on pain of criminal punishment persisted from the earliest days of common law until 2015. Attitudes towards [same-sex marriage] have changed . . . but our laws have consistently condemned and continue to prohibit [that practice].
Three of the four dissenters to Obergefell remain on the court (only Scalia is gone, replaced by Gorsuch). Two of the five who voted with the narrow majority in Obergefell, Ginsburg and Kennedy, are gone and replaced by Trump appointees.
To describe Obergefell as gravely threatened by the looming decision reflected in this draft is an understatement. However, it could go even further than that.
In 2003, by a 6–3 vote, in Lawrence v. Hardwick the Supreme Court struck down a Texas anti-sodomy statute that criminalized gay sex. In doing so the court reversed the 1986 case of Bowers v. Hardwick which upheld a similar Georgia statute. In Lawrence, Justice Thomas joined in a dissent written by Scalia stating “our Nation has a longstanding history of laws prohibiting sodomy.”
Again, if we plug in the language above a future decision could read:
The inescapable conclusion is that a right to [gay sex] is not deeply rooted in our Nation’s history and traditions. On the contrary, an unbroken history of prohibiting [gay sex], on pain of criminal punishment, persisted from the earliest days of common law until 2003. Attitudes towards [gay sex] have changed . . . but our laws have consistently condemned and continue to prohibit [that practice].
To be fair, in dicta, the draft opinion cites Loving, Obergefell and Lawrence and states that its reasoning should not be viewed as affecting them. However, the reasoning they offer is not sensible. The draft argues the abortion issue is different because it involves “the critical moral question” of killing “a potential life.”
While that may be true, it has no foundation in any Constitutional text and the distinction simply has no relevance to the standard the court claims to be using, where the right must be deeply rooted the nation’s history and traditions. Notably, for both Obergefell and Lawrence, members still on the court, who signed onto this draft on abortion, dissented providing the very same reasoning that is the majority view now.
Anyone who thinks the profound changes in America from this looming decision are confined to abortion rights is very naive. It has the potential to go much further.
