A leaked Supreme Court opinion draft reveals that Roe v. Wade will be overturned.
A California constitutional amendment protecting abortion rights is in the works. Lorie Shaull / Wikimedia Commons Lorie Shaull / Wikimedia Commons
For nearly 50 years, the right of a woman to voluntarily terminate her pregnancy with a safe, legal abortion procedure has been protected by the United States Constitution. The Supreme Court’s momentous, 1973 decision Roe v. Wade established that. The court’s 1992 case Planned Parenthood v. Casey confirmed the right to an abortion as stated in Roe.
But all of that is about to change. SCOTUS is expected to issue a ruling in the case Dobbs v. Jackson Women’s Health Organization by the end of June. But on May 2, a draft of the majority opinion in the case was somehow obtained by the online magazine Politico.
In the draft opinion—which the court confirmed to be authentic—Justice Samuel Alito issues what Politico described as a “a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights.” In other words, the Constitutional right to choose abortion which has existed for the last 20 percent of this country’s history would be eliminated as soon as the final opinion is released.
Not in California, however, if Gov. Gavin Newsom and state Democratic leaders get their way. In December 2021, after a SCOTUS hearing in the Dobbs case gave strong indications of where the court’s conservative justices were headed, Newsom vowed that California would protect the right to abortion services and serve as a “sanctuary” for women from other states where abortion would be banned if Roe v. Wade were reversed, as now appears to be the case.
According to a New York Times report, as many as 32 states appear likely to ban abortion outright or impose severe, new limits on obtaining the procedure as soon as SCOTUS overturns Roe, or shortly thereafter.
It should be noted that, though authentic, the draft opinion is not final. There is at least a chance that the court’s ultimate ruling may scale back some of the emphatic language used by Alito to repudiate the Roe decision—language described as “horrifying” by Planned Parenthood national CEO Alexis McGill Johnson.
Alito was nominated to the Supreme Court in 2006 by Republican President George W. Bush. According to the University of Michigan Martin-Quinn score system, which attempts to provide an objective measurement of where SCOTUS justices fall on the ideological scale, Alito currently rates as the second-most conservative justice on the court, behind only Justice Clarence Thomas, based on rulings from the 2020-2021 session. As senior justice in the majority, experts believe that it was Thomas who would have assigned the writing of the opinion to Alito.
In March, Newsom began making good on his word when he signed a new law to eliminate fees on abortions for women who have private insurance plans (which are required to cover abortion services under state law). The legislature now has 14 bills under consideration that would protect or expand access to abortion, including one, Senate Bill 1375, that would allow nurse practitioners to perform abortions without the supervision of a doctor.
That bill is designed make abortion services more accessible to the 600,000 women living in the 40 percent of California counties that have no abortion facilities at all.
Within hours of the Politico report revealing the draft SCOTUS opinion in which Alito writes, “we hold that Roe and Casey must be overruled,” Newsom announced that along with state Senate President Pro Tempore Toni Atkins and Assembly Speaker Anthony Rendon, both Democrats, he would propose an amendment to the California constitution to “enshrine the right to choose” in state law.
The amendment would come up for voter approval on the November 2022 state ballot.
Maintaining California as a “sanctuary” for women who choose abortion services appears particularly important given that, even with Roe v. Wade still on the books, about 15 percent of all abortions in the United States—nearly 133,000—were performed in California in 2017, the latest year surveyed in a report by the Guttmacher Institute.
If Roe v. Wade is indeed thrown out by the current edition of SCOTUS—as now appears certain after the leak of Alito’s draft majority opinion—close to one of every three abortion clinics remaining the U.S. (29 percent) will be situated in California, according to a study by the San Francisco Chronicle. California is the most populous state, but nonetheless contains just 12 percent of the U.S. population.
Once Roe v. Wade is history, the Chronicle found, 202 of the country’s 790 abortion clinics are likely to close down immediately, as new state laws banning the procedure are put into place.
Even if the constitutional amendment proposed by Newsom is approved by voters, it may not go far enough to hold off the full consequences of the SCOTUS ruling. According to law professors Melissa Murray and Leah Litman—co-hosts of the legal podcast Strict Scrutiny—the ruling contains language so strong in rejecting Roe v. Wade that it can be seen as “implicitly inviting a flurry of challenges to other precedents, including cases protecting contraception and LGBTQ civil rights.”
Because Alito bases his legal reasoning in the opinion, at least in part, on the fact that the Constitution “makes no reference to abortion,” the ruling's logic could also be used to toss out previous SCOTUS opinions establishing Constitutional protections for same-sex marriage, established in 2015’s Obergefell v. Hodges, and even interracial marriage—a right established in the 1967 decision Loving v. Virginia.
The privacy right established in the 1965 Griswold v. Connecticut decision formed the basis for Roe v. Wade eight years later. In the Griswold ruling, the court held that the state could not ban the use of contraceptives by married couples due to the right of privacy, which the court found to exist in the First, Third, Fourth, and Ninth Amendments to the Constitution. But even the right to use birth control could be in jeopardy after the Dobbs decision, if Alito’s draft opinion remains largely unchanged, according to Boston University law professor Robert Tsai.
In his draft opinion, Alito specifies that the reasoning he applies to Roe v. Wade should not be used to challenge other rights, such as same-sex marriage, interracial marriage or contraceptive use. But legal experts looked askance at the conservative justice’s assurances.
“We should always take with a grain of salt what judges say in trying to contain what other judges might say in the future,” Tsai wrote in a Politico essay. Just as Alito and several other justices felt no need to stick with a precedent that has been on the books for nearly 50 years, there is nothing in the Dobbs draft that binds future justices.”
“They kicked the ladder out from under the right of privacy in the Constitution,” former U.S. Senator Claire McCaskill, a former prosecutor, said in an MSNBC interview. “There are a lot of decisions that rest on this right of privacy that springs not just from the Bill of Rights, but also the 14th Amendment and the concept of liberty in this country.”
Harvard University Law Professor Laurence Tribe sounded an especially pessimistic note, warning in a Boston Globe essay that even a state law, such as California's proposed constitutional amendment, might not hold up under the Supreme Court opinion as written in the leaked draft.
"Not a word of the opinion, and nothing in its reasoning, limits the ability of Congress to enact a law banning abortion nationwide, invoking the supremacy clause to override state laws more respectful of the rights of women," Tribe wrote.