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The leaked SCOTUS draft threatens contraception and same-sex marriage rights, too.

Demonstrators protest outside of the U.S. Supreme Court Tuesday, May 3, 2022 in Washington. A draft opinion suggests the U.S. Supreme Court could be poised to overturn the landmark 1973 Roe v. Wade case that legalized abortion nationwide, according to a Politico report released Monday. Whatever the outcome, the Politico report represents an extremely rare breach of the court's secretive deliberation process, and on a case of surpassing importance. AP Photo/Jose Luis Magana

An early draft of a Supreme Court vote in a major abortion case was leaked to the press this week. The 98-page draft opinion, written by Justice Samuel Alito, shows that the court is poised to strike down Roe v. Wade—the landmark 1973 decision outlining a person’s right to abortion before fetal viability. 

News of the leak spread quickly, prompting an immediate response from the White House and Chief Justice John Roberts, who vowed to launch a swift investigation into the leak. “This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here,” Roberts said in a statement. The leak, first provided to the publication POLITICO, also prompted protests outside of the Supreme Court Monday evening into Tuesday. 

Left: Martha Davis, university distinguished professor of law at Northeastern, is one of more than 40 researchers, lawyers, and health professionals who have submitted an amicus brief asking the court to strike down the Mississippi law. Right: Libby Adler is a professor of law and women’s, gender, and sexuality studies. Courtesy photos.

Writing in the opinion, which on its face is a complete repudiation of Roe, Alito says “the Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.” Roe’s central holding, which was reaffirmed in Planned Parenthood of Southeastern Pa. v. Casey, relied on a “right to privacy” concept in lieu of explicit reference to abortion in the text of the Constitution.

At least four other justices voted with Alito in a private conference held after oral arguments in the case, Dobbs v. Jackson Women’s Health Organization, in December, POLITICO reports. They include: Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

The willingness of the conservative justices to take such a brazen stance against Roe (Alito called the 1973 ruling “egregiously wrong”) threatens other rights rooted in the same privacy framework, including contraception and same-sex marriage rights, says Martha F. Davis, university distinguished professor of law at Northeastern, who teaches constitutional law and human-rights advocacy. 

“This is just the beginning, I’m afraid,” Davis says. “Using this logic, the [conservative wing] has a list of precedents that would be construed as ‘egregiously wrong.’” 

But Davis stresses that the leaked opinion offers a window into the conservative justices’ thinking that’s now several months old (the opinion was reportedly written in February). After hearing oral arguments, justices typically go back into their chambers and conduct a preliminary vote on the matter before them. The senior justice in the majority (here, Clarence Thomas) would assign the opinion to another justice (Samuel Alito). But through private conversations, compromises may emerge that could ultimately lead to a much different outcome than anticipated, Davis says. 

“It’s very hard to know how to react because it is a draft,” Davis says, “and [Chief Justice John] Roberts isn’t on it. Is it possible, for example, that Roberts drafted a less radical opinion, and was able to attract, say, [Justice Brett] Kavanaugh? We just don’t know.”

Democratic politicians took to condemn the decision after news of it broke, with some, including President Joe Biden, among others, calling on Congress to codify abortion rights. 

“End the filibuster. Codify #RoeVWade with a national law protecting abortion rights. Expand the Supreme Court. Stop this horrifying injustice in its tracks,” Massachusetts Sen. Elizabeth Warren tweeted

Could abortion rights be enshrined through a constitutional amendment? Theoretically, yes. But with more than two-dozen states poised to restrict abortion were the Supreme Court to strike down Roe, it’s unlikely that such a movement could gather the necessary momentum.  

“I don’t see how you get a pro-choice amendment through the ratification process unless there’s a significant change in the politics,” says Libby Adler, professor of law and women’s, gender, and sexuality studies. 

In addition to states becoming emboldened to restrict abortion, Adler says the decision as written could lead to “increased rates of criminal prosecution of people who use drugs during pregnancy, or engage in other behavior that could endanger a fetus.”

“Once the fetus gains the status of ‘life,’ this will be deemed child abuse, and will be yet another basis for incarcerating especially Black and brown people,” Adler says. 

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