Demonstrators protest in front of the U.S. Capitol across the street from the U.S. Supreme Court Tuesday, May 3, 2022 in Washington. Photo by Alex Brandon | Associated Press
A leaked initial draft of a Supreme Court opinion overturning Roe v. Wade not only eliminates a nationwide guarantee of abortion rights but provides a prototype for eliminating civil liberties from gay marriage to the use of contraception and interracial marriage, Democratic leaders warned Tuesday.
The draft's rationale "calls into question the fundamental right to privacy — the right to make personal choices about marriage, whether to have children, and how to raise them," President Biden said on Twitter. "These are fundamental rights for Americans — a critical part of who we are."
The draft decision in Dobbs v. Jackson, a case surrounding a Mississippi law that sharply curtailed abortion rights, was published late Monday by Politico and confirmed a day later by the Supreme Court.
While Chief Justice John Roberts said it didn't reflect the final position of the court or any individual justice, Democrats and civil rights advocates were alarmed both by the decision and the apparent willingness of a conservative majority to discard rights upheld by the court for almost 50 years.
As Biden and others noted, the privacy right in which Roe v. Wade was grounded has underpinned several more recent rulings that shaped the social landscape of 21st century America.
While never detailed in the Constitution, the privacy right was construed from provisions in the First, Third, Fourth, Fifth, Ninth and Fourteenth Amendments and first used to support a right to contraception in Griswold v. Connecticut in 1965.
That was eight years before Roe, which relied on it to guarantee a constitutional right for women to obtain abortions until a fetus could survive outside the womb, about six weeks into a pregnancy at the time.
It also played a role in decisions such as Loving v. Virginia, which legalized interracial marriage; Lawrence v. Texas, a 2003 decision overturning criminal laws against gay sex; and Obergefell v. Hodges, which declared a constitutional right to same-sex marriage.
While Alito said the abortion right is "critically different" from other rights the court has held are protected by the Fourteenth Amendment - including sexual relations, contraception and marriage -because it destroys "fetal life," many observers didn't view that as a guarantee, partly because of its context.
Alito argues in the same draft that any right not specifically conferred by the Constitution "must be deeply rooted in this nation's history," they point out, a qualification that wouldn't apply to several of those decisions.
Draft opinions are frequently reworded heavily before they are finalized, and justices have sometimes changed their votes, a history to which Roberts alluded in Tuesday's statement.
"Many are wondering what this decision means for more recent victories won in the courts for LGBTQ+ people," said Sarah Warbelow, legal director for the advocacy group Human Rights Campaign. "If Roe is overturned, there is no immediate impact on any other case decided by the Supreme Court including Lawrence and Obergefell. But it encourages state lawmakers pandering to the base to test the limits of court-recognized LGBTQ+ equality."
'A Dangerous Blueprint'
House Speaker Nancy Pelosi, a California Democrat, echoed that logic.
"This draft ruling offers a dangerous blueprint for future assaults on some of our most cherished rights, which are rooted in the long-held constitutional right to privacy," she said in a statement.
"In brazenly ignoring 50 years of its own precedent, the U.S. Constitution and the will of the American people, this draft ruling would seriously erode the legitimacy of the Supreme Court in the eyes of the American people," Pelosi added.
While the high court has often attempted to present itself as above partisanship, both Pelosi and Senate Majority Leader Chuck Schumer highlighted the incendiary political backdrop of the draft ruling.
Politico reported that Alito had the backing of four other justices: Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett and Clarence Thomas, constituting a bare majority.
All were appointed by Republican presidents and three - Gorsuch, Kavanaugh and Barrett - by former President Donald Trump, who was able to choose so many because former Senate Majority Leader Mitch McConnell, a Republican, refused to consider a nominee from Democratic President Barack Obama in 2016, the last year of his term.
How Roberts himself might vote is unclear, according to Politico, which reported the three justices appointed by Democratic presidents were working on one or more dissents.
He said 'no'
“The Republican-appointed justices’ reported votes to overturn Roe v. Wade would go down as an abomination, one of the worst and most damaging decisions in modern history," Pelosi and Schumer said in a joint statement.
“Several of these conservative justices, who are in no way accountable to the American people, have lied to the U.S. Senate, ripped up the Constitution and defiled both precedent and the Supreme Court’s reputation – all at the expense of tens of millions of women who could soon be stripped of their bodily autonomy and the constitutional rights they’ve relied on for half a century," they said.
The Democratic leaders' allegations of dishonesty appeared to refer to statements both Kavanaugh and Gorsuch made about Roe v. Wade and the principle of stare decisis, or relying on previous court decisions on a particular matter as a basis for future jurisprudence, in their confirmation hearings.
"If this leaked draft opinion is the final decision and this reporting is accurate, it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office," said Sen. Susan Collins, a Maine Republican and abortion rights supporter who voted to confirm both justices.
In remarks explaining her decision to back Kavanugh, who was accused of sexual misconduct as a teenager that he denied, Collins express confidence that he would support Roe v. Wade.
Kavanaugh "is the first Supreme Court nominee to express the view that precedent is not merely a practice and tradition, but rooted in Article III of our Constitution itself," Collins said in 2018. "When I asked him would it be sufficient to overturn a long-established precedent if five current justices believed it was wrongly decided, he emphatically said 'no.'"