(WASHINGTON) — With a leaked draft opinion revealing this week that the U.S. Supreme Court appears poised to overturn nearly 50 years of abortion rights precedent, Democrats and activists are sounding alarms that other rights not explicitly listed in the Constitution — but long-considered protected as implied rights of privacy — could be threatened next.
“If the rationale of the decision — as released — were to be sustained, a whole range of rights are in question — a whole range of rights,” President Joe Biden told reporters on Tuesday, offering his first public reaction to the document as the court confirmed its authenticity.
“If the right to privacy is weakened,” said Vice President Kamala Harris, “every person could face a future in which the government can potentially interfere in the personal decisions you make about your life.”
Their anxiety, legal experts told ABC News, is not only with Roe being overturned but in how it would be overturned — and whether the final opinion’s language and reasoning could set the stage for other unenumerated rights — those not directly listed in the Constitution — to be similarly sent back to be decided by the states.
While Justice Samuel Alito writes in the draft opinion that the court’s decision on Dobbs v. Jackson Women’s Health Organization concerns only abortion and does not extend to other rights, experts say his current justification for overturning Roe opens the door to imperil other long-standing liberties the court has upheld for decades.
Here’s what legal experts are saying about the draft text:
Alito’s ‘originalist’ approach
The Supreme Court grounded its 1973 decision in Roe v. Wade on the Fourteenth Amendment’s due process clause, which the court has said guarantees Americans an implicit “right to privacy,” though that phrase is not used in the Constitution.
Justice Harry Blackmun described the constitutional underpinnings of that right when authoring the opinion: “This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy,” the 1973 decision read.
But Alito — rejecting stare decisis, the legal doctrine intended to bind courts to abide by past rulings, as it relates to abortion — called the court’s decision on Roe “egregiously wrong from the start.” Taking an originalist approach, he argues in the draft opinion obtained by Politico that there’s no explicit right to privacy, let alone the right to an abortion, in the Constitution.
“It held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned,” Alito writes, calling the Roe decision “remarkably loose in its treatment of the constitutional text,” and arguing that stare decisis “does not compel unending adherence to Roe’s abuse of judicial authority.”
Taking issue with Alito’s reasoning, Biden said Wednesday he believes the court’s current conservative majority would agree with failed Supreme Court nominee Robert Bork’s view that the right to privacy should not have been guaranteed with the court’s ruling in 1965 in Griswold v. Connecticut, which overturned a ban on married couples’ access to contraception.
“Griswold was thought to be a bad decision by Bork, and my guess is, the guys on the Supreme Court now,” Biden said.
Marc Spindelman, a professor at The Ohio State University Moritz College of Law, said it’s because of Alito’s reasoning — appearing to reject court precedent and the right to privacy in favor of an originalist interpretation of the Constitution — that puts other precedents, like the right to same-sex intimacy in Lawrence v. Texas in 2003 and same-sex marriage in Obergefell v. Hodges in 2015, at-risk, since those rights were also bound to the Fourteenth Amendment.
“From the point of view of originalist reasoning, it’s difficult to see what is distinctive about abortion compared to other rights that are now constitutionally protected but that originalist methodology, in principle, threatens,” Spindelman said.
Kate Shaw, a professor at Cardozo School of Law and an ABC News contributor, echoed that view.
“The whole method that the Roe Court used, which is basically to say what are the kind of key attributes of liberty that the Constitution has to protect, whether or not they’re written in the document, Alito says that method is totally illegitimate,” she said. “And instead, what the Constitution should be read to protect is the explicitly enumerated rights and a small, a small list of unenumerated rights, but only rights that are deeply rooted in history and tradition.”
Spillover concern
Alito wrote in the draft opinion, “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
“What sharply distinguishes the abortion right,” he said, is that it destroys “potential life,” and that “none of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion.”
In deciding whether a right is protected, Alito said the court “has long asked whether the right is ‘deeply rooted in [our] history and tradition’ and whether it is essential to our Nation’s ‘scheme of ordered Liberty.'” In Alito’s view, abortion does not meet that standard.
“What Alito says is, don’t worry. Our decision today is only about abortion, not about anything else,” Spindelman said. “But if an originalist approach is the touchstone for judgment in the case, then it’s hard to see how or why the decision should not apply to other kinds of individual rights that the Court has said are protected by the Fourteenth Amendment.”
That approach, in principle, could doom any right that didn’t exist since the country’s founding, Spindelman said.
“It’s difficult to see why if once you pull row up from the roots, why decisions of more recent vintage ought to stay in the ground to be counted by the court as part of its respect for its own precedent,” he added.
So, could the court find a way to pull abortion from the right to privacy without unraveling other precedents? Former Justice Antonin Scalia clerk and vice-dean at the NYU School of Law, Rachel Barkow, doesn’t think so.
“I think that you can’t coherently do it,” she said. “Unfortunately, that is actually what erodes the legitimacy of the court as an institution because it’s not the leak that’s going to damage the court’s legitimacy, it’s not upholding rationales and being consistent over time.”
The problem for the court, she said, is that the Roe decision is part of a line of cases bound to recognizing the right to privacy, “and the draft opinion shows no respect for the right to privacy, and in light of that, all the cases that rely on that right to privacy would also find themselves falling under the same rationale.”
“I think the bigger thing that the public sees is no precedent is safe,” Barkow said “The court’s willingness to just cast aside a 50-year-old precedent, not just any precedent, but one that has been the subject of these confirmation hearings, and it’s a reason that they’re sitting there is they gave assurances to senators that they weren’t going to overrule it, and then they did.”
“I don’t think anyone can really take that group of people’s word if they say, ‘Oh, no, the other precedents are safe,'” she added. “I think they cried wolf one time too many.”
The opinion could change
When the court confirmed the document’s authenticity on Tuesday, it stressed in a statement that it “does not represent a decision by the Court or the final position of any member on the issues in the case.”
Experts stressed to ABC News that court opinions can change throughout their drafting. The leaked decision could potentially emerge with a different decision entirely — or completely unchanged.
“We don’t know exactly what this final opinion is going to look like when it is issued,” Shaw said. “But I would say absent something truly extraordinary and unexpected happening inside the court, some version of this opinion will be issued as the opinion of the court in a matter of weeks that will be the law of the land, and Roe versus Wade will be no more.”
And if so, the question becomes how soon the fate of other privacy rights will come before the court — from states and others challenging their constitutionality, using the conservative justices’ own arguments.
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