‘Constitutional earthquake’: Stanford legal experts cast grim outlook on draft opinion overturning Roe v. Wade

May 4, 2022, 12:23 a.m.

After the leak of a Supreme Court draft majority opinion overruling Roe v. Wade, Stanford legal experts gave grim predictions for the future of reproductive health and choice. They warned that past rulings of the Court, such as allowing contraception use and same-sex marriage, could be challenged based on the draft opinion’s ruling. 

The leaked opinion, which has stirred controversy on campus and around the nation, is a complete renouncement of the 1973 Supreme Court case that granted federal constitutional protections of the right to abortion and bodily autonomy.

“As for reproductive choice on the ground, it’s going to be pretty grim in a lot of places,” wrote Stanford Constitutional Law Center fellow and civil rights litigator Rebecca Talbott in a statement to the Daily. “As I understand it, 20 states already have bans on the books and/or ‘trigger laws’ that cause a ban to spring into effect the moment the U.S. Supreme Court strikes down Roe.”

Justice Samuel Alito, the author of the draft opinion, writes that Roe “must be overruled,” adding that “it is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

According to the draft opinion, prior to abortion becoming a constitutionally protected right, 30 states prohibited women from making reproductive choices at all stages of pregnancy, regardless of circumstance. Additionally, sixteen states allowed abortion in the cases of rape, incest, severe fetal defect or risk to the life of the mother. But only Alaska, Hawaii, Washington and New York granted all women bodily choice before 1973. 

Then, Roe, a 7-2 decision — under Republican-appointed Chief Justice Warren Burger and with only three Democratic-appointed justices on the bench — ruled that Texas woman “Jane Roe” possessed a right to privacy based on the Due Process Clause of the Fourteenth Amendment, and that Dallas County district attorney Henry Wade violated that right by enforcing an anti-choice law. 

Talbott warned that if the draft opinion goes into effect, previous Supreme Court rulings protecting the right to contraception and relations with same-sex partners that are grounded in the right to privacy would be challengeable under the logic used to overturn Roe.

Former U.S. Senator Russell Feingold (D-Wis.), the president of the American Constitutional Society and an affiliate of the Stanford Constitutional Law Center, warned not just of the consequences this decision would inflict on millions of women who will suddenly be stripped of their right to reproductive choice, but also of the endangerment of other individual rights.

“Overturning Roe and eliminating the constitutional right to abortion will inflict enormous harm on millions of people, particularly marginalized people living in states with trigger laws or those states that will move to criminalize abortion in immediate response to this decision,” Feingold wrote to The Daily. “The horror of this opinion is that it doesn’t just strike down reproductive rights, it clearly sets out a roadmap for eliminating other civil rights on which Americans have built their lives.”

Feingold alluded to the partisan approach that Republicans have taken to the U.S. Supreme Court confirmation process in recent years, which has resulted in a court that is much more socially traditionalist than the Burger court, despite having the same composition of six Republican-appointed and three Democratic-appointed justices.

“This is exactly why the Right packed the Supreme Court with ideologues whose allegiance is to party, not the Constitution,” Feingold wrote. “The need to reform this seriously compromised Court has never been greater.”

In 1987, another member of the Senate, Edward Moore Kennedy (D-Mass.), delivered a famous speech warning America of what could happen if the body confirmed President Ronald Reagan’s Supreme Court nominee Robert Bork, a Richard Nixon loyalist who fired Special Prosecutor Archibald Cox at the height of the Watergate investigations. Among his dire predictions, Kennedy said Bork’s America would be one “in which women would be forced into back alley-abortions.”

Though the Senate overwhelmingly rejected Bork then, law professor Michele Dauber expressed a similar outlook on the America that will follow the Supreme Court’s apparent plan to overturn of Roe.

“This opinion is reprehensible and misogynist. It will make women second-class citizens throughout the US,” Dauber wrote in a comment to The Daily. “Let me be perfectly clear: this decision won’t stop abortions, it will increase the harm of botched, unsafe, illegal abortions. It will increase the trauma of rape and child sexual abuse victims. It will increase domestic abuse.”

Dauber expressed concern about the current direction of the Supreme Court and the body’s membership, suggesting that Democrats should add more justices while they can.

“This Court — which includes right wing hacks, an accused attempted rapist and a sexual harasser married to an accused seditionist — isn’t legitimate,” Dauber wrote. “Nor is the failed ideology of Court worship. The only way out of this is to pack the Court, hard and fast.”

Law professor Jane Schacter, a constitutional law scholar, highlighted that since Alito’s opinion is a draft that has been released months in advance of the final decision, Supreme Court justices could still change their votes on the case. However, she predicts a dire future for Roe if no justice of the majority opinion changes course.

“If this were the final opinion, it would be a constitutional earthquake that could put a wide range of previously-recognized constitutional rights in jeopardy,” Schacter warned.

Jed Ngalande '23 is the politics and government beat reporter for The Daily's news section. Contact him at news 'at' stanforddaily.com.

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