If the leaked draft opinion by Justice Samuel Alito in the Supreme Court case of Dobbs v. Jackson Women’s Health Organization prevails, as expected, these are the last days of the constitutional right to abortion announced by Roe v. Wade in 1973. Yet to hear Democrats tell it, we are in the last days of several basic rights and stand on the precipice of the republic’s undoing.
“If it becomes the law and if what is written is what remains,” President Joe Biden intoned, “it goes far beyond the concern of whether or not there is the right to choose, and into other basic rights.” Such as? In the Biden administration’s brief in support of those challenging the anti-abortion law at the center of the case, it mentioned “the rights to same-sex intimacy and marriage, to interracial marriage and to use contraception.”
Vice President Kamala Harris told the pro-choice group EMILY’s List that the fall of Roe would mean that “anyone in our country may face a future where the government can interfere with their personal decisions,” specifically invoking Supreme Court cases on contraception and gay marriage.
The reality is that such worries are far-fetched at best, and the discussion highlights Roe’s weakness as a ruling. It’s worth briefly reviewing why that is, before debunking the attempts to connect Roe to other rights.
The majority opinion in Roe, written by Justice Harry Blackmun, has long been criticized by both opponents and supporters of legalized abortion for its failure to convincingly root a right to abortion in the Constitution. For conservatives, the court’s blithe holding that an amorphous and implied “right of privacy … is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy” is a textbook case of the judges achieving a preferred policy outcome and willing a constitutional basis for it into existence. The majority did not even clearly base this implied right on a particular constitutional provision, indicating that it might be found in multiple places. Then, it went further, without the aid of text or principle, to lay out how this right should constrain regulation of abortion in each trimester of pregnancy, much as a legislature might, as Justice Alito coldly notes in his draft opinion.
The dissenters in Roe condemned it at the time as just this: a mere policy preference masquerading as jurisprudence. Judge Byron White called it “an exercise in raw judicial power.” Justice William Rehnquist wrote that “to reach its result, the Court necessarily had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment.”
Even the late feminist icon and resolute pro-choice Justice Ruth Bader Ginsburg thought the Roe court’s ambitions outstripped precedential case law. To her mind, the court should only have struck down the most restrictive abortion laws “and not gone on, as the Court did in Roe, to fashion a regime blanketing the subject, a set of rules that displaced virtually every state law then in force.” A more modest holding, she thought, would be more likely to endure. She and other progressives have also argued that an abortion jurisprudence based on women’s equality, rather than privacy, would prove more convincing. When in 1992, in the case of Planned Parenthood v. Casey, a splintered court narrowly declined to overturn Roe, it highlighted its deficiencies and sought to narrow it and place it on firmer ground. That effort, too, failed.
For these reasons, Roe’s eventual overturning should have been expected. Yet Democrats responded to the leaked draft with incandescent outrage and a full-blown attack on the legitimacy of the high court.
Speaker Nancy Pelosi and Majority Leader Chuck Schumer issued a joint statement saying the justices in the expected Dobbs majority, “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.”
Sen. Elizabeth Warren wrote: “I’m angry at the justices who deliberately deceived the American people. I’m angry at the Republicans in Congress who stole two Supreme Court seats to get us to this day.”
Hillary Clinton gravely stated: “This opinion is dark. It is incredibly dangerous and it is not just about a woman’s right to choose. It is about much more than that. … Once you allow this kind of extreme power to take hold you have no idea who they will come for next.”
This alarmism may help rally Democratic voters to the polls in an otherwise rapidly deteriorating electoral climate for the majority party, but it runs recklessly ahead of the facts and risks doing serious damage to America’s institutions of self-government.
Surely, thoughtful people may disagree with Justice Alito’s legal analysis, but it’s a sober and scholarly piece of mainstream judicial work. As pro-choice Yale law professor and Roe critic Akhil Amar persuasively wrote: “There is nothing radical, illegitimate or improperly political in what Justice Alito has written.” The opinion does not impose a policy on the country or interfere with the personal choices of anyone; rather, it concludes that the Constitution leaves it to voters, in the many states, to decide on whether and how to regulate abortion — a process that had been short-circuited by the court in 1973 to great harm.
Yes, the Alito opinion would reverse a decades-old precedent, but there’s nothing unusual about this. The court overturns its own precedents with some regularity; indeed, it’s important that it have the power to do so. The alternative would be to let American law and the Constitution itself sink under the weight of the court’s own prior mistakes. No Democrat today thundering about the value of precedent would see a problem in many prior instances of the Supreme Court reversing other long-standing precedents, such as when it struck down segregation or established a right to private same-sex intimacy or marriage.
Despite what some now claim, the justices in the purported majority did not “lie” under oath at their confirmation hearings when they testified repeatedly that Roe was “settled law” or an “established precedent of the court.” This testimony may have given some pro-Roe senators comfort, but it goes little further than truisms. And it was no less forthcoming than Justice Sonia Sotomayor, who testified similarly about the established individual right to bear arms before joining an opinion in the other direction the following year.
All Supreme Court nominees take pains to avoid testimony that would prejudge a future case, and not a single sitting justice said anything approaching a guarantee that he or she would never reconsider Roe or other precedents of the court. One might argue the Senate should demand more revealing testimony from nominees — and as a former chief nominations counsel to the Senate Judiciary Committee, I’d be inclined to agree — but that’s a criticism of the confirmation process, not of the sitting justices.
Similarly regarding the confirmation process, none of the justices in the purported majority occupy “stolen seats.” All were nominated by the president of the United States and confirmed by the Senate in the ordinary course. Democrats retain anger at the previous Republican majority for denying a confirmation process to then-Judge Merrick Garland and the perceived rush to confirm Justice Amy Coney Barrett. But if these moves constituted a violation of Senate norms or an escalation of the judicial confirmation wars, so did the decision by then-Sen. Biden and the Democrats to torpedo the nomination of Judge Robert Bork and to begin applying a Roe-informed litmus test to GOP nominees. If they had not made those decisions, Roe might well have been reversed decades ago.
Likewise, Democrats miss the mark when they claim the expected decision in Dobbs foreshadows decisions ruling against rights to contraception, same-sex marriage, and more. These other precedents, for a host of jurisprudential and practical reasons, will almost certainly endure. The Alito draft expressly notes that its holding applies to abortion alone. Critics scoff, but it reflects a widely held view in the conservative legal movement and beyond that Roe represents uniquely and egregiously bad constitutional law. Even the Roe majority acknowledged that abortion implicated a legitimate state interest in protecting prenatal life. There is simply no such weighty countervailing interest in any of the other precedents Democrats now claim to be vulnerable.
In addition, many of those other precedents are more firmly rooted in the constitutional text rather than amorphous ideas of “privacy.” The right to interracial marriage, announced by a unanimous court in Loving v. Virginia, rests on the guarantees of equal protection under the law provided by the post-Civil War amendments. It follows from other decisions of the civil rights era that firmly rejected the court’s previous endorsement of “separate but equal” as a logical impossibility.
With respect to same-sex marriage, while the court’s 5-4 opinion in Obergefell relies a great deal on notions about privacy and personal autonomy, it also found support in better-grounded areas including equal protection. It’s quite probable that a majority of the current court would find that prohibitions on sex discrimination would support a right to gay marriage (and gay intimacy). Only two years ago, Justice Neil Gorsuch, a member of the expected Dobbs majority, wrote for a 6-3 court that existing civil rights laws prohibit discrimination on the basis of sexual orientation, reasoning that such discrimination ultimately discriminates on the basis of sex.
The court’s holdings on the rights to contraception and gay intimacy, meanwhile, have the benefit of existing in harmony with public opinion both when announced and even more so today. As Justice Alito notes in his draft opinion, the laws at issue in those cases were uncommon, uncommonly enforced, or both. Ruling as the court did in those matters did not short-circuit a national democratic debate or, as Justice Ginsburg said of Roe, “invalidate virtually every state law.”
Even if any of the justices in the purported majority thought the original decision in any of these other cases was in error, that does not mean they would vote to reverse them now. No justice gives precedent absolute weight, but all give it some weight. Famously, Justice Rehnquist long criticized the landmark Miranda decision for creating rights not clearly established in the Constitution. Nonetheless, he later wrote the majority decision upholding it. “Whether or not we would agree with Miranda’s reasoning and its resulting rule, were we addressing the issue in the first instance,” he explained, the fact it had become so “embedded” argued for upholding it. Many conservative justices might feel the same about the precedent establishing a right to gay marriage. It’s one thing to conclude as an initial matter that state legislatures, not the court, should decide whether to recognize gay marriage; it’s quite another to rip apart familial relationships long established.
Importantly, litigation can only begin if someone has an articulable injury; the court does not simply set out to revise its past decisions. It’s hard to imagine circumstances in which a state would attempt to ban contraception or same-sex intimacy, to say nothing of same-sex or interracial marriage. Practically speaking, it’s almost impossible to believe one would successfully do so, and if it did, lower courts would immediately strike down the ban under current law. The Supreme Court, which chooses which cases to hear, would almost certainly decline to review such a decision.
We live in extremely divisive, polarized times. The question of abortion raises deeply personal and emotional issues. Passion, even excessive rhetoric, must be expected. But we must do better and, especially, demand better from our elected representatives. We need to commit collectively to our Constitution and our political system, the spaces in which citizens of a republic engage.
Democrats and supporters of Roe face a choice — make their case in our system or assault the system. They should choose the first. The expected Dobbs decision should invite and inspire them to persuade their fellow citizens to support policies they wish on the state and federal levels. Dismayingly, in their first legislative response to the draft Dobbs opinion, Democrats chose to advance federal legislation so radical that it lost the support of a bipartisan group of pro-choice legislators. If they wish to win elections and shape policy, they will need to adopt a less strident and more productive policy. Furthermore, if Democrats truly believe Dobbs gets the Constitution wrong, they should attempt to make the intellectual case for a broad constitutional right to abortion and invest in electing presidents and senators who agree with their vision.
Democracy is difficult, frustrating, and frequently disappointing. Supporters of former President Donald Trump did violence, figuratively and literally, to our institutions rather than accept they lost a legitimate process. Democrats today engage in destructive rhetoric, and protests at the homes of justices raise fears of something darker. But Americans have made democracy work for generations. We can do it still, even on issues as difficult and divisive as abortion.
Gregg Nunziata is an attorney in Washington, D.C. He previously served as chief nominations counsel to the U.S. Senate Committee on the Judiciary.
