Draft Roe decision raises fears it could undermine other social rulings

WASHINGTON — The recently leaked draft Supreme Court opinion overturning the landmark 1973 Roe v. Wade decision denied that it would undermine rulings legalizing same-sex intimacy and marriage — but some experts aren’t buying that assertion.

The 98-page draft by Justice Samuel Alito, a longtime opponent of abortion rights, backed by four other justices, declared, “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion."

Yet law professors, politicians and activists still are debating just how far-reaching the draft ruling in Dobbs v. Jackson Women's Health Organization would go in undoing rulings by more liberal predecessors if the conservative majority scraps Roe and other abortion precedents.

In Dobbs, Mississippi state lawyers used a legal challenge to a state law banning abortion after 15 weeks instead of the current 26 to ask the Supreme Court to strike down the nationwide constitutional right to abortion established by Roe nearly 50 years ago.

President Joe Biden said the draft’s rationale that the right to an abortion is not mentioned in the Constitution and not supported by history and tradition “would mean that every other decision relating to the notion of privacy is thrown into question.”

The ruling’s final version is not expected to be released until late June or early July.

Politico’s news site, which posted the leaked draft, said Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett voted for Alito’s draft and Chief Justice John G. Roberts did not. It is not clear how Roberts might affect or vote on the final draft.

Meanwhile, a vigorous debate has ensued on the potential impact of Alito’s draft.

“It's the tone that makes the music,” said Eric M. Freedman, a constitutional law professor at Hofstra University Law School, when asked about the Alito draft’s declaration that overturning Roe would be limited to abortion.

“In the big picture, it’s not the precise words of the holding. It's the systemwide hydraulic pressures and the signal. And there's no question in the world that the tone is a signaling an effect quite apart from the literal statement,” Freedman told Newsday.

“If you are disposed to believe, it's certainly possible to believe” the draft’s assertion that it would not affect other rights, Freedman added.

“The problem is that the form of analysis that gets them there [to overturning Roe], if applied to everything else, would certainly lay waste to various cases,” he said.

Some legal scholars and experts take Alito at his word. They include Thomas Jipping, a senior legal fellow at the conservative Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies.

“In Roe versus Wade, the court was asked, ‘Since you created other rights like these other privacy rights, you should also create this one,’ and the Court said that abortion is, quote, ‘inherently different from other privacy rights,’ " Jipping told Newsday.

Now the court is being asked that because the court appears to be overruling Roe would it also overrule all these other rights, Jipping said, but the draft said that abortion is unique because it involves the taking of a life.

“Other privacy rights do not raise the same kind of, I think the draft referred to it as like a ‘moral dilemma’ as abortion does, and that this affects absolutely no other rights than abortion,” Jipping said. “I guarantee this will be in the final draft.”

What is thrown into question is the 1965 ruling called Griswold v. Connecticut, which struck down a law banning contraceptives.

The Griswold ruling relies on the idea that the Constitution protects the right to liberty and privacy under several amendments, including the 14th Amendment’s due process clause — even though the Constitution does not name it as a right.

Griswold laid the foundation for Roe in 1973, Planned Parenthood of Southeast Pennsylvania v. Casey in 1992 upholding abortion rights, Lawrence v. Texas in 2003 making same-sex intercourse legal and Obergefell v. Hodges in 2015 legalizing same-sex marriages.

Alito, on the court since 2005, wrote the dissent in Obergefell, joined by Thomas and Antonin Scalia. His Dobbs draft echoes parts of his Obergefell draft.

“To prevent five unelected Justices from imposing their personal vision of liberty upon the American people, the Court has held that ‘liberty’ under the Due Process Clause should be understood to protect only those rights that are ‘deeply rooted in this Nation’s history and tradition,’ ” he wrote. “And it is beyond dispute that the right to same-sex marriage is not among those rights.”

Freedman said the Supreme Court could overturn Lawrence because it is based on substantive due process, but he doubted the court would overturn Obergefell.

“One difference is that abortion is something you do in the future. There are millions of people who are now married. That's one problem,” Freedman said.

“The other problem is that that's a completely different valence,” he said. “Whatever their own political views are about anything, when it turns out that their own child has a good relationship with a same-sex partner, that's the most important thing.”