Leaked Supreme Court Draft Would Overturn Abortion Rights by Leaving Questions about the Future of Constitutional Privacy Unanswered – By Cody Venzke

On May 2, 2022, Politico published a leaked initial draft of a majority decision in the Supreme Court’s pending case, Dobbs v. Jackson Women’s Health Organization; the draft concludes that the Court’s decisions in Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) “must be overruled.” Overturning Roe and Casey would end federal protections for women’s access to abortion, and the draft opinion’s searching historical analysis around constitutional conceptions of privacy leaves open the possibility that many “privacy” rights may be open for revision.

The Court’s draft decision overturning Roe and Casey comes as a result of a challenge to the Mississippi Gestational Age Act, which prohibits any person from “intentionally or knowingly perform[ing] . . . an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.” In reaching its tentative holding overturning Roe and Casey, the draft first considers “whether the Constitution, properly understood, confers a right to obtain an abortion.” It reasons that the Due Process Clause provides substantive rights only if they are “deeply rooted in [our] history and tradition” and essential to our nation’s “scheme of ordered liberty.” Surveying legal developments from the common law to Roe, the draft opinion concludes, “Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. Zero. None.” The opinion thus concludes, “The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions.”

The draft opinion also rejects the view that the right to obtain an abortion “is an integral part” of a “broader entrenched right” to privacy or “personal dignity and autonomy.” It distinguishes abortion from a line of cases supporting “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” including rights to reproduce, raise children as parents see fit, access contraceptives, have an interracial or same-sex marriage, and have an intimate relationship with a person of the same sex. The draft rejects “appeals to a broader right to autonomy” as “prov[ing] too much”: “Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like. . . . None of these rights has any claim to being deeply rooted in history.”

It is not clear to what extent the draft’s reasoning opens other privacy and personal autonomy cases to revision. It is possible to read the draft’s reasoning as limited to access to abortion, which it regards as posing a uniquely “critical moral question.” According to the draft, “none” of the privacy and autonomy cases related to marriage, reproduction, and intimate relationships “involved what is distinctive about abortion: its effect on what Roe termed ‘potential life.’”

However, the close relationship between access to abortion and other privacy and autonomy rights, both conceptually and jurisprudentially, raises the possibility that those privacy rights may be subject to scrutiny. Conceptually, the draft notes that privacy may be understood as “the right to make and implement important personal decisions without governmental interference,” encompassing many of the rights described above related to marriage, reproduction, intimate relationships – and abortion. Jurisprudentially, both access to abortion and other privacy rights stem from Due Process Clause as fundamental rights that are implied by certain Constitutional provisions, and the draft frames its analysis around their common jurisprudential root, stating, “[Roe] held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned.”

Because they share conceptual and jurisprudential roots with abortion access, privacy rights related to marriage, reproduction, and intimate relationships may be subject to Dobbs’ searching historical analysis. The exact contours of that analysis are not expressly defined by the draft opinion, but its reasoning provides three guideposts.

First, the draft opinion analyzes the historic record for support for – or opposition to – a right with particularity. The draft limits its analysis in the historic record to only the practice of abortion and expressly rejects a broader framing of the right, such as one premised on privacy, dignity, or autonomy. According to the court, providing substantive rights based on a “broadly framed right” “may correspond to one of the many understandings of ‘liberty,’ but it is certainly not ‘ordered liberty.’”

Second, the draft places particular emphasis on historic practice and legal precedent at the time of the ratification of the Fourth Amendment and its Due Process Clause in 1868. For example, the draft rebuffs the significance of a common law dispute over “pre-quickening” abortion by noting, “By 1868, when the Fourteenth Amendment was ratified, three-quarters of the States, 28 out of 37, had enacted statutes making abortion a crime even if it was performed before quickening.” Accordingly, “the original ground for the quickening rule is of little importance for present purposes because the rule was abandoned in the 19th century.” The draft goes on to criticize countervailing examples offered by the respondents for failing to “dispute[] the fact that by 1868 the vast majority of States criminalized abortion at all stages of pregnancy.”

Finally, in searching historic practice and legal precedent, recent case law, without more, is insufficient to establish that a right is “deeply rooted in [our] history and tradition” and essential to our nation’s “scheme of ordered liberty.”  The draft rejects authorities cited by the respondents, describing them as a “few district court and state court decisions decided shortly before Roe and a small number of law review articles from the same time period.” The draft suggests that precedent postdating the adoption of the Fourteenth Amendment may be irrelevant, noting that it considers them “for the sake of argument.”

However, not all constitutional privacy rights are premised entirely on the Due Process Clause. Decisions securing the rights to contraceptives, inter-racial marriage, and same-sex marriage are premised on both constitutional privacy under the Due Process Clause and the right to equal treatment under the Equal Protection Clause. Thus, even if the reasoning of the draft Dobbs decision undercuts constitutional privacy, those decisions may still be valid under Equal Protection precedent.

The only available opinion in the Dobbs case is the leaked draft, which is dated from February 2022. No concurring or dissenting opinions have been obtained. A final decision is expected from the Court this summer.