By Chloe Reichel
On May 2, 2022, Politico published a leaked draft of the majority opinion in Dobbs v. Jackson Women’s Health Organization, which showed the Supreme Court’s intent to overturn the right to abortion as decided in Roe v. Wade.
In response to the leak, the Petrie-Flom Center hosted a discussion with legal historian and Daniel P.S. Paul Visiting Professor of Constitutional Law Mary Ziegler and Petrie-Flom Center Faculty Director, James A. Attwood and Leslie Williams Professor of Law, and Deputy Dean I. Glenn Cohen.
Together, Cohen and Ziegler explained the background of the case, the contents of the draft opinion, and its potential implications not just for abortion access, but also for other constitutionally-protected rights, and for access to reproductive technologies, such as in-vitro fertilization.
The highlights of the conversation have been edited and condensed below.
The Case and The Leak
What is the case, Dobbs v. Jackson Women’s Health Organization, about?
I. Glenn Cohen: The narrow question asked of the court was whether the 15-week [abortion] ban of the state [of Mississippi] was constitutional or not.
We began with a case that really focused on whether viability was the correct line or not.
With the passing of Justice Ginsburg and a replacement on the Court, things have shifted, and even since the oral argument, I would say shifted even more to this question of the wholesale overruling.
What does the draft opinion actually say?
Mary Ziegler: The draft opinion holds that Roe v. Wade was not just wrong, but “egregiously wrong,” in the language of the opinion. Wrong the day it was decided, and wrong today.
Its reasoning draws heavily on Washington vs. Glucksberg. So it asks, was there a right to abortion is deeply rooted in the nation’s history and tradition, and concludes that that right is not deeply rooted. The draft suggests that from the very early common law onward, abortion was viewed if not as a crime throughout pregnancy, then certainly with disfavor — that there was no belief in the 19th century at the time the 14th Amendment was ratified that there was a right to abortion, and that indeed most states at the time were criminalizing abortion throughout pregnancy.
The draft also looks at kind of conventional stare decisis analysis — in addition to leaning pretty hard on the idea that Roe was egregiously wrong, that its reasoning was uniquely unpersuasive — the draft suggests that Roe and Planned Parenthood vs. Casey have become unworkable. As evidence of this, the draft looks at the fact that the Court has tinkered with Roe and Casey, and also that the undue burden test, which Casey laid out, has uncertain contours that the Court’s Justices don’t necessarily even at the moment agree on what it entails, and that it has generated inconsistent results in the lower courts.
How did this draft opinion come to be?
Cohen: While the opinion is in some ways surprising, it is kind of a natural apogee of the directions that we were going in, in a number of ways and this is a case where I don’t think, oh, if we only made this argument, or if we only had written this, it would have made any difference. This result was fairly baked in.
Ziegler: If you’ve studied the history of this issue, it becomes quite clear that people who are opposed to abortion don’t think Roe was wrong primarily because its reasoning was unconvincing. They think that Roe was wrong because of the outcome it reached.
I think in part you see that reflected in the draft, in the sense that the draft disposes of the equal protection argument. I think that the organizing that’s around this issue has given us a Court that thinks there is no abortion right, full stop, on any grounds, including ones not originally dealt with in the Roe opinion.
But many of the recently confirmed Supreme Court justices had testified in their Senate hearings that Roe was settled law. The leaked draft suggests they will soon sign onto a decision to overturn Roe. Would that be perjury?
Ziegler: I think there’s a long now relatively long-standing tradition of not answering the question and so the kinds of sound bites you’ll see the justices give essentially are things about you know settled law and Roe is a precedent of the court that say absolutely nothing about what they’re going to do and of course that’s by design. I don’t know if anyone believed at the time that those were solid commitments not to reverse Roe.
I think it’s more an indictment of how confirmation processes have changed, rather than of the individual justices.
Why do you think the draft was leaked?
Ziegler: My guess is because people are watching. There’s a feeling that that overruling Roe is different, is consequential, and the leaker was probably trying to influence that outcome one way or another.
Cohen: I think there’s been a strategic use of the conversation, in political circles, of deflecting attention to the leak and the mystery of the leak, and away from the content of the opinion and its implications.
What are the prospects of a federal abortion ban or fetal personhood bill?
Cohen: This will be a next frontier for the anti-abortion movement, it’s probably a long frontier, the same way getting Roe overturned was a long frontier. That’s not a lot of solace to people, but it probably is a project that is going to require many years.
As some states move to criminalize abortion and others continue to provide safe and legal abortion, how will these conflicting state laws interact?
Ziegler: The constitutional questions that extraterritorial application of criminal law would raise are really unsettled, vis-à-vis the right to travel or the dormant commerce clause, even the choice of law questions are extremely unsettled, but it seems that states are interested in this and it’s not surprising why. There’s a real awareness in conservative states that unless you have extraterritorial application of laws, the laws will have a gaping loophole, and in many instances the abortion rate will not go down, even in a post-Roe United States. So I think that’s why we’re seeing this, but I think it’s likely to usher in a probably even more chaotic era legally than the one we’ve come to know.
Cohen: And if I can just add one more note to that, which is from a reproductive justice perspective, it’s really important to recognize that while travel for some women is an option and a possibility for many women it’s either not a very good option or it’s not an option at all — if you’re a person with a disability, if you’re a person with a job or have other child care needs and can’t get away, if you’re in a relationship where you fear domestic violence if you leave for a period of time and this is discovered — just putting aside just how far some women will need to travel and how expensive it will be. I don’t want anybody to think that we’re suggesting that even if this is permitted that this is an easy solution.
If the draft opinion becomes law, how might it affect medication abortion?
Cohen: Many of the most interesting questions are preemption — so, the extent to which FDA’s approach to the drugs in question, mifepristone, misoprostol — whether that plus the REMS that’s in place as a matter of FDA law on at least one of the drugs, ends up being preemptive or not about state attempts to restrict prescribing or the availability of the drugs.
Ziegler: The other interesting question about the intersection between medication abortion, preemption, and generally questions of travel is the extent to which that changes the dynamics of whom states set out to punish.
We’ve seen thus far that, with the possible exception of Louisiana, states have been pretty much in lockstep in saying they seek to only punish medical professionals, and potentially aiders and abettors, which is a kind of broad category that could include theoretically almost anybody but the pregnant person. But I think that the availability of medication abortion and possible steps involving FDA preemption will put more pressure on states to considering consider punishing patients.
How might it affect the legality of reproductive technology, such as in-vitro fertilization?
Cohen: I think the question to ask is not so much the constitutional question — did you have a right yesterday that no longer exists – but whether states are going to be emboldened and feel pressured to make inroads on IVF and on embryo destruction in particular after this opinion. And I think that’s a hard political question.
What’s more likely to happen, in my opinion, is not that we’ll see legislation directly targeting IVF, but rather poorly drafted legislation side swiping IVF and questions of interpretation of those statutes. The zeal to restrict abortion will be framed in a way that sideswipes reproductive technologies, and then there’ll be a question — for me, more of a political question — about whether constituencies in favor of those technologies are able to get the language changed.
If the right to abortion is overturned, what might this mean for other constitutionally-protected rights, such as marriage equality?
Ziegler: There’s sort of a disclaimer in the draft, where essentially Justice Alito says, if you’re worried about other substantive due process opinions on marriage equality, or on birth control, or on same-sex intimacy, don’t worry about it because abortion is sui generis. Roe and Casey involved the taking of a fetal life — fetal life is valuable; this is different; we’re not revisiting any of those precedents. A variety of commentators have weighed in on whether that disclaimer is to be believed or not, and I think there are reasons to be skeptical of the promises made in the draft, but it’s also worth put putting out there that it’s a major part of the draft — that this is supposed to be a draft about Roe and Casey and not potentially putting out its tentacles into the world.
What legal strategies remain available for securing access to abortion?
Ziegler: There are lots of ingredients here for an effective counter movement to reverse Dobbs, if you’re looking in the long enough term. Obviously I think that’s a question of decades, not of months or years, so I think federal constitutional law is something that will be changeable only if people are playing the long game — and if they’re playing the long game not just in terms of constitutional theory, but in terms of social movement organizing, political lobbying, the restoration of something that looks like a genuine grassroots pro-choice movement, which I think has been underdeveloped in recent decades, and that’s true even of a kind of frayed relationship between the movements for reproductive justice and a right to choose.
I think the action at the moment is in the states, including disputes over state constitutions. We’re seeing that play out already, certainly in Michigan.