Draft signals Supreme Court shift on civil rights, experts say

Justice's first take on abortion opinion — if adopted — could affect rights on same-sex marriage, contraception

With a Supreme Court ruling coming that is anticipated to reverse legal precedent on abortion, at least four states will vote on abortion-related ballot initiatives this year. (Bill Clark/CQ Roll Call)
With a Supreme Court ruling coming that is anticipated to reverse legal precedent on abortion, at least four states will vote on abortion-related ballot initiatives this year. (Bill Clark/CQ Roll Call)
Posted May 4, 2022 at 3:02pm

The Supreme Court’s leaked draft opinion jolted some legal experts for how it would not only upend abortion rights, but move onto shakier ground other constitutional rights such as same-sex marriage, contraception and more.

Justice Samuel A. Alito Jr.’s draft in a case about a Mississippi abortion law indicates there are enough votes for the Supreme Court to overturn the Roe v. Wade decision from 1973, which first established a constitutional right to abortion. The first draft from February describes abortion rights as not “deeply rooted” in the nation’s history and not explicitly protected by the Constitution.

Experts said if that reasoning becomes final, it would reflect a major victory for a conservative legal movement that has long criticized “judge-made law,” where they argue Congress or state legislatures should decide public policies instead of the Supreme Court.

Duke University School of Law professor Neil Siegel called the draft “extraordinary” because it goes beyond the reasoning the court needed to restrict abortion. Siegel said, if adopted, it could open potential challenges to legal rights like same-sex marriage, same-sex relationships, contraception, interracial marriage and protection against forced sterilization.

“It's sweeping. It's breathtaking. It's — all at once, 50 years of constitutional law is erased,” Siegel said. “It reads like it was done by people on a mission.”

Not final

The draft, while authentic, does not represent a decision or the final position of any justice on the issues in the case, the Supreme Court said in a news release Tuesday. The language almost certainly will change as part of the ongoing deliberations process before an opinion in the case is issued before the end of the term at the end of June.

Siegel said the Alito draft would reject the same analysis from Roe, referred to as “substantive” due process, that the court also applied in the Supreme Court’s decisions that protect same-sex marriage, interracial marriage and right to contraception.

In one portion of the opinion, Alito sought to differentiate the abortion issue from other rights because it dealt with "potential life" and wrote: "Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion."

But that did not pass muster with Siegel and other experts, who said the Supreme Court likely will not be bound by such a small portion of an opinion that rejects the legal reasoning behind other rights.

“I mean, these are rights that Americans now take for granted. They're inconsistent with the methodology that Justice Alito applied,” Siegel said. “So it's all well and good for him to say ‘No, this is just about abortion. It doesn't apply to anything else,’ but stay tuned.”

Democrats ponder fallout

Some Democrats, including President Joe Biden, said the decision would reverberate far beyond abortion.

“The idea that somehow there is no right of privacy … What happens if you have a state changes the law saying that children who are LGBTQ can't be classrooms with other children,” Biden told reporters Wednesday.

Rep. Jamie Raskin, D-Md., who taught constitutional law at American University, argued on Twitter that Alito’s draft would allow states more power over decisions of life and death, including the criminalization of abortion and the return of forced sterilization.

“Any right-wing state powerful enough to jail you for having an abortion is powerful enough to compel you to have one and sterilize you,” Raskin tweeted.

George Washington University law professor Sonia Suter disagreed, saying that the specific case banning sterilization relied on a different provision of constitutional law.

Suter said there is less of a leap for the draft opinion to apply to contraception cases, because Alito's own words in the 2014 majority opinion in Burwell v. Hobby Lobby equated certain contraception with "abortifacients.”

“The same religious views can shape the idea that contraception of certain forms is essentially an abortion,” Suter said. “You could even argue, ‘Well, it's not that we're taking away an existing right, we already did it with abortion.’”

Legal experts said the cases are all connected because the reasoning in Roe v. Wade fits into the broader context of civil rights protections from Supreme Court decisions in the last half century.

Conservative approach

Conservatives on the court have called for the Supreme Court to adopt a more narrow approach to constitutional rights for decades.

Alito himself dissented from the decision that legalized same-sex marriage in 2015, and wrote “it is beyond dispute that the right to same-sex marriage is not among those rights” specifically enumerated by the Constitution. The late Justice Antonin Scalia made similar arguments in his dissent from the 2003 decision in Lawrence v. Texas that declared laws against same-sex relationships unconstitutional.

Republicans have stated their opposition to decisions like those as recently as last month. During a Judiciary Committee meeting to advance Judge Ketanji Brown Jackson’s Supreme Court nomination, Sen. John Cornyn, R-Texas, equated the same-sex marriage decision to the infamous Plessy v. Ferguson decision in 1896 which allowed “separate but equal” racial segregation.

Cornyn couched the criticism as part of a broader attack on what he called “judge-made law” without root in the founding document.

“When the Supreme Court creates a right not even mentioned in the Constitution, the independence and legitimacy of the Supreme Court itself is called into question because consent is discarded,” Cornyn said during the meeting.

The draft opinion from Alito would enshrine that approach into law if it becomes final, according to University of Pennsylvania Carey Law School professor Kermit Roosevelt.

“The idea that constitutional law can be a vehicle to vindicate the rights of politically weak groups is definitely threatened by this approach that looks to the past and asks ‘What rights has society recognized?’” Roosevelt said. “Because society recognizes the rights of the powerful generally.”