Draft Opinion Rejects Roe Begs Questions: Will There Be More Precedent Next?


WASHINGTON — As an appeals court judge, Samuel A. Alito Jr. has repeatedly drawn criticism from his peers for not respecting precedent and building legal understanding. The co-judge said, for example, that one of his dissent ignored “our precedent” and another deviated from the axiom that laws should be interpreted “by well-recognized rules.”

Two decades later, a leaked draft opinion suggests that the Supreme Court will soon overturn precedents like Roe v. Wade and eliminate women’s constitutional right to have an abortion. Judge Alito wrote the draft, devoting 30 pages to arguing that the court need not follow a decision that has asserted abortion rights for nearly 50 years.

The principle of law staring at decisions – that previous decisions should generally be respected and not easily overturned – “is not an inescapable order,” wrote Judge Alito, adding: “When one of our constitutional decisions goes astray, the state is usually stuck with a bad decision unless we correct it. our own fault.”

The seemingly imminent loss of constitutional abortion rights raises questions about how aggressive the Roberts trial will be to overturn a precedent – and whether similar constitutional rights protecting different types of sexual activity and conjugal relations can be challenged by cultural and religious conservatives in the years to come. .

For much of the Roberts trial era, the Supreme Court was less aggressive in overturning precedent than its predecessors since after World War II, the data show. But the court has been amended by President Donald J. Trump’s appointees, giving conservative movement factions the power to repeal what it considers to be settled laws that underlie important parts of modern American life.

In his draft ruling, Judge Alito himself noted that the Supreme Court established many other important modern rights on the same grounds as the right to abortion. What he cites includes precedents that prohibit states from criminalizing or preventing people from buying and using contraceptives; sexual relations between adults of the same sex; and inter-racial or same-sex marriage.

As with abortion rights, these rights include personal freedoms that are not mentioned in the Constitution, but whose existence has been inferred by the Supreme Court of the 14th Amendment. This limits the government’s ability to unfairly take people’s liberties, which courts have interpreted as implying the right to privacy and personal autonomy over decisions involving people’s bodies and relationships.

Judge Alito proposed a narrow interpretation of the doctrine, citing the analytical framework set out in a 1997 decision by then-chief judge, William Rehnquist, which enforced state laws prohibiting assisted suicide. But Judge Alito ignored that in drafting the framework, the 1997 opinion had also discussed and cited the key 1992 abortion rights decision that his draft opinion would be reversed as wrong.

Basically, Judge Alito argued that for the unwritten right to liberty to be valid, it had to be deeply rooted in the nation’s history and was understood to have existed when the 14th Amendment was passed in 1868. By then, he wrote, many countries had criminalized abortion. and there is no understanding that women have the right to terminate their pregnancies.

Judge Alito also sought to allay concerns that his excuses would jeopardize other modern-day rights. Neither of the others involved the destruction of the fetus, so they did not raise the “critical moral questions that abortion raises,” he wrote.

“We emphasize that our decision concerns the constitutional right to abortion and no other right,” he added. “There is nothing in this opinion that should be understood to cast doubt on precedent unrelated to abortion.”

But that assurance was met with widespread skepticism.

First, it is not clear that contraception, which was banned by several countries before the landmark 1965 decree and its descendants, is different from abortion. However, Judge Alito has accepted, in a 2014 opinion he wrote in the Burwell v. Hobby Lobby, that companies have the right to refuse to cover contraception in employee health plans if the owner believes, for religious reasons, that contraception is abortion.


Additionally, if cultural and religious conservatives in state legislatures or Congress enact further legislation that violates the Supreme Court precedent that establishes modern-day rights, proponents of those laws could present similar arguments to pressure courts to overturn such precedent too. After all, things like the right to same-sex partners have no deep historical basis and, in the minds of some, also raise critical moral questions.

Laurence Tribe, a liberal Harvard Law School professor repeatedly cited by Justice Alito for his 1973 legal review article in which Mr. The Tribe criticized Roe v. Wade, denounced Judge Alito’s statement that the draft opinion does not raise any doubt about the precedent that does not care about abortion.

“That’s not how principled adjudication works,” Tribe wrote on Twitter. “Either you become a political hacker or your ‘only abortion’ is BS.”

Judge Alito’s opinion was meant to give greater allegiance to the precedent that helped him overturn abortion rights. Some abortion rights advocates argue that they can be ascribed to a different part of the Constitution: the “equal protection” clause of the 14th Amendment. By that theory, laws prohibiting abortion amounted to sex-based discrimination against women.

Judge Alito dismissed the idea as “having been overtaken by our precedent” – citing the 1974 case on whether pregnancy should be covered by state-run temporary employment disability insurance programs and the 1993 case on anti-abortion protesters, and quickly moved on.

The era of the Roberts trial began in 2005, when Chief Justice Rehnquist died and President George W. Bush appointed John G. Roberts Jr. as a replacement.

Later that year, Bush nominated his White House attorney, Harriet Miers, to fill the void created by the retirement of Judge Sandra Day O’Connor. But conservatives balked because he has no paper trail showing involvement with their ideology. Mr Bush withdrew his candidacy and proposed Mr Alito instead, initiating a shift to the right.

Overall, the Roberts trial is less prone to overturning precedent, according to data compiled by Adam Feldman, a Supreme Court scholar and creator of the blog Empirical SCOTUS.

From 2005 through last term, the Roberts trial had overturned precedent in about 1.47 cases per term, the fewest of any chief justice since World War II, according to Mr. Data. Feldman. Measured another way, the court has overturned precedent in 2.27 percent of the cases it has heard, a slightly lower rate than its predecessors from the 1950s and 1960s Warren Trials.

But in recent years, the composition of the courts has changed drastically. Trump replaced moderate conservative judge Anthony Kennedy and liberal judge Ruth Bader Ginsburg with the chief justices deemed more likely to vote in a consistent conservative direction, Brett Kavanaugh and Amy Coney Barrett.

Along with Judges Alito, Neil M. Gorsuch, and Clarence Thomas, there is now a conservative supermajority in court. And its ideological median fairness – which in close cases determines the majority – has moved from Justice Kennedy or Supreme Court Justice Roberts to Justice Kavanaugh or Judge Barrett, legal experts say, making it more likely to issue conservative decisions.

In 2018 and 2019, some liberals accused the Roberts trial of being activist in overturning decades-old precedents in some ways. These include stating that government workers who choose not to join a union may not be asked to help pay for collective bargaining efforts, ruling that states should not be prosecuted in other state courts, and allowing people to sue in federal court to seek immediate compensation. after state and local governments take their property through reputable domains.


In the latter two cases, Judges Stephen G. Breyer and Elena Kagan differed, warning that courts were becoming too disrespectful of precedent. After citing court abortion precedent, for example, Judge Breyer wrote, “Today’s ruling can only make one wonder which case the court will reject next.”

At the time, Jonathan H. Adler, a libertarian-leaning Case Western Reserve University law professor, cited data such as Mr. Feldman to rebuke the liberals for sounding the alarm, given that the Roberts trial was not extraordinary on average.

But in an interview this week, Adler said he now expects the current Supreme Court to overturn precedents more often – and to do so more consistently in a conservative direction.

“Advocates and lower courts will create more opportunities to overturn precedents, in the way cases are framed and brought and the types of arguments made,” he said. “And without Roberts being the middle judge again, the likelihood the court is willing to overturn the precedent I hope will increase.”