Published May 6, 2022
The leak of a U.S. Supreme Court opinion draft that would overturn the right to abortion established in Roe v. Wade is “absolutely astonishing,” UB legal scholar Lucinda M. Finley says.
Finley, an expert on reproductive rights who has argued two separate cases before the court, also says the blockbuster news about the leak will intensify the impression that the court is a fully politicized institution — an impression that risks great harm to its legitimacy.
“The likely result is not at all surprising, based on the court’s oral arguments and a decades-long strategy focused on appointing federal judges committed to overturning Roe,” says Finley, the Frank G. Raichle Professor of Trial and Appellate Advocacy in the School of Law.
“The implications,” she says, “are abortion will become an even more intense political issue, especially at the federal level, because if the Senate filibuster is removed, a Republican-controlled Congress and White House can ban abortion nationwide and nullify laws of states like New York.”
Finley explains that laws such as New York’s that protect the right to an abortion will not be in immediate jeopardy if the draft opinion becomes the court’s final ruling. It would take a federal law banning abortion throughout the country to overrule New York’s legislative choice to protect abortion.
The decision would have monumental implications for women’s reproductive rights, according to Finley.
“Making abortion illegal does not stop women from seeking and getting abortions,” she notes. “It makes it much more expensive and difficult and dangerous. Thus, bans fall hardest on young women, lower-income women, immigrants and women in inflexible jobs without adequate leave policies.”
Because of the leak and looming court decision, Finley expects there will be a surge of donations to groups that provide services to support abortion access, including funds to assist lower-income women with the cost of travel and child care, as well as the cost of an abortion. She also anticipates individuals and groups will increase the shipment of abortion pills to women in states where abortion services are limited or non-existent.
Finley also expects states planning to ban abortion will also seek to stop women from trying to get the abortion pills, including potential criminal sanctions against anyone who sends such pills into the state. Some states may also try to prohibit their residents from traveling to other states where abortion is legal, or from assisting women with traveling to other states. Finley says she is also concerned that states will start to prosecute women seeking abortion services, as a prosecutor in Texas recently attempted.
There are implications for other issues, she says.
“The reasoning in the Alito draft means that rights to contraception, as well as same sex marriage, could be gone as well,” she says.
Roe relied heavily on a Supreme Court decision — Griswold v. Connecticut — that declared that married adults have a fundamental right to access contraceptives, Finley says. The court decision striking down state laws making sodomy a crime relied on both Roe and Griswold. And the same sex marriage decision — Obergefell v. Hodges — also relied on all these prior decisions.
The leaked draft opinion states that a right not specifically enumerated in the Constitution’s text cannot be a “fundamental right” that becomes protected under the due process clause of the 14th Amendment unless it was recognized throughout English and U.S. common law predating the Constitution.
“Laws banning contraception were widely enacted during the same mid-19th-century years when states started banning abortion,” Finley says. “So, under the reasoning of the draft opinion, access to contraception would not be a fundamental right, and states or Congress could ban some or even all contraceptives without violating any constitutional rights.”
Similarly, she says, the common law made many forms of sexual intimacy outside of heterosexual marriage a crime. So, under the reasoning of the draft opinion, states could once again make adultery, sodomy or sex outside of marriage (legally known as fornication) crimes. And same sex marriage certainly was not a right recognized in the common law or in U.S. statutory law at the time the 14th Amendment was adopted, she says, so it might no longer be a constitutionally protected right based on the reasoning of the draft opinion.