'A full-throated reversal' of abortion rights

In a leaked draft majority opinion, the U.S. Supreme Court appears ready to overturn Roe v. Wade, a landmark 1973 decision built on rights outlined in the 14th Amendment protecting a woman's right to privacy when seeking to terminate a pregnancy. The court also appears prepared to strike down Planned Parenthood v. Casey, a subsequent case that in 1992 reaffirmed a woman's constitutional right to have an abortion without undue burden placed on her by governmental regulations or restrictions.

But both laws determined that the right to terminate a pregnancy is not absolute. Both cases sought to determine the point during pregnancy in which the potential fetal life must be protected. Whereas Roe determined that point based on the three trimesters of pregnancy, the Casey decision instead developed a framework based on fetal viability—a stage of development generally between 23 and 24 weeks gestation when the fetus is able to survive outside the mother's uterus. Under Casey, abortions after the point of fetal viability may be prohibited except when the procedure is necessary to protect the life or health of the mother.

Since that ruling, some states have sought to prohibit or regulate abortions before the point of fetal viability, including the 2018 Mississippi law banning abortions after 15 weeks that forms the basis of Dobbs v. Jackson Women's Health Organization—the case that may prove the undoing of Roe.

Although she has been closely following the progression of the Dobbs case in the Supreme Court, health law and policy scholar Joanne Rosen, who specializes in the laws that affect reproductive health, says she was nevertheless surprised by the tone—and some of the content—of the leaked decision.

"The draft opinion neglects any meaningful recognition of the women who face unwanted pregnancies, and focuses almost entirely on the state's interest in the fetus," Rosen says. "In this way, I think the draft opinion does a tremendous disservice to the complexity of the various and sometimes competing interests that the Supreme Court has previously acknowledged, and tried to balance and protect, in Casey and in Roe. Dobbs, as it's written now, is devoid of nuance. It appears to look only at one life that's in the balance, ignoring the fact that there are two."

Below, Rosen shares further insights into the decision now facing the court as it decides whether to overturn Roe and Casey and uphold Dobbs.

What was your initial reaction to the news that Roe may be overturned, and how has that reaction evolved?

My initial reaction was shock that the draft opinion in Dobbs v. Jackson Women's Health Organization had been leaked. I know there has been reporting on whether Supreme Court opinions have ever been leaked before, but I believe this is the first time an internal, working draft of a Supreme Court opinion has been leaked to the press. And of course, shock about the content of the opinion—that an apparent majority of the Supreme Court is circulating an opinion that fully and unqualifiedly reverses Roe v. Wade.

Roe v. Wade and Planned Parenthood v. Casey, as well as subsequent Supreme Court abortion cases, have been consistently clear on the constitutionally protected right to abortion: While states are permitted to regulate abortion, they cannot ban abortion before fetal viability. This has been the constitutional standard in an unbroken line of cases dating from 1973 to the present. In Roe and Casey, I think the Supreme Court tried to walk a tightrope between protecting the right of the pregnant woman to have agency over decisions about whether to continue a pregnancy, and giving scope to the states' interest in wanting to protect and preserve the developing fetal life. In Roe and Casey, the court recognized the profound impact of pregnancy on the pregnant person—the physical impact of the pregnancy, the risks associated with that pregnancy, the risks associated with childbirth, the enormous demands of parenthood—as well as the impact that pregnancy, and control over one's reproductive autonomy, have on a woman's ability to participate fully in the social, economic, and educational worlds. The court attempted to reconcile the potentially conflicting interests of the pregnant person and the state by using viability as a sort of dividing line between when the state can regulate abortion but not ban it and when the state can, if it chooses, ban abortion.

When the federal appeals court considered Mississippi's pre-viability, 15-week abortion ban, they invalidated it—correctly—because it was inconsistent with Supreme Court precedent. So, when the Supreme Court agreed to hear Mississippi's appeal to this decision, it was alarming to those of us who work in reproductive health. The Mississippi ban was not in a constitutional gray area and not in need of judicial clarification. It was unambiguously unconstitutional. But there was ambiguity about how far the court might go in its review of the Mississippi law. Would they use this case as a vehicle to revisit basic, bedrock constitutional precedent and overrule Roe and Casey? Or would they use this case to shrink but not entirely abolish the right to abortion? Either way, we knew the right would change.

When I listened to the oral argument in December, the ambiguity about what the court might do was somewhat resolved. Based on the justices' questions, there appeared to be at least five who were ready to reverse Roe. While the justices' questions don't always portend the way they will ultimately decide a case, the content of the leaked opinion was consistent with oral argument. And yet it was nevertheless really shocking to see the draft opinion and to see the way the court, at least in their first pass in February, was headed. The draft opinion is a full-throated reversal of Roe.

What do you mean by a full-throated reversal?

The strength and certainty and breadth of the language in the draft opinion, the total repudiation of virtually every element of the legal reasoning in Roe and in Casey, the negation of the constitutional analysis on which Roe and many other cases rest, and the opinion's overtly aggressive tone—it was a full-throated reversal of Roe. The draft opinion describes Roe as "egregiously wrong," and says it was egregiously wrong at the time that it was decided. The draft opinion also fully discredits the extensive and detailed historical record that formed part of the original Roe opinion. The court says that it needs to set this historical record straight, and substitutes its own quite different version of this history.

The draft opinion neglects any meaningful recognition of the women who face unwanted pregnancies, and focuses almost entirely on the state's interest in the fetus. In this way, I think the draft opinion does a tremendous disservice to the complexity of the various and sometimes competing interests that the Supreme Court has previously acknowledged, and tried to balance and protect, in Casey and in Roe. Dobbs, as it's written now, is devoid of nuance. It appears to look only at one life that's in the balance, ignoring the fact that there are two.

The thing that wasn't surprising were the arguments about whether there is, in fact, a constitutional right to make decisions around abortion anchored in the 14th Amendment. This, and the protection of other non-enumerated constitutional rights, has been debated for the last 50 years. There is no explicit right to abortion or a right to privacy in the Constitution. For opponents of Roe, this has been one of the strongest critiques of that decision, and that's what I expected to see in the draft opinion: an argument that the reasoning in Roe rests on unsound constitutional footing. But the draft opinion goes much farther. It is a scorched-earth reversal of Roe in the strongest possible terms.

So if this draft reversal stands, it will set its own precedent and apply to future Supreme Court decisions.

If the final opinion follows the same framework as the draft, then it will make clear that the due process clause in the 14th Amendment does not and never did protect decisions about abortion. And if the court then says, as it does in the draft, that the proper forum for determining whether abortion should be allowed, prohibited, or restricted lies with lawmakers and with the people who elect them, then that would be the precedent.

The reversal of Roe doesn't mean that states must ban abortion. It means that states are free to ban or to regulate it. There are many states that have consistently been very hostile to abortion access and that have introduced repeated restrictions to try to reduce access. If Roe is reversed, they will be allowed to go even farther and ban abortion. And there have been several states that are not restrictive in that way and that, in fact, have tried to protect abortion access.

Research by the Guttmacher Institute illustrates a sort of unspoken dialogue between lawmakers and members of the Supreme Court. In 2021, states enacted—not just introduced, but enacted into law—108 abortion restrictions. That is the single highest number of abortion restrictions in any year since Roe became law in 1973. That is, I think, part of this unspoken dialogue. The abortion-restrictive states saw the change in the composition of the court, assumed that they would be regulating in the climate of a friendly court, and that these restrictions were likely to be upheld. As one of my students described it when we were talking about this in class, the lawmakers were reading the room and wagered that the current judicial climate was very favorable.

There are 25 or 26 states that are likely to ban abortion as soon as they get the constitutional green light to do so. Some of those states already have trigger laws in place that will automatically ban abortion if Roe is reversed. At least 15 states and D.C. have so far enacted laws to protect abortion. And some of those states—including Maryland, California, and Connecticut—introduced new bills during the current legislative session to reinforce and expand the protections available for abortion on the understanding that if Roe is reversed, there will be more people traveling to these states because they can't obtain abortions in their home states.

There are also a small number of states that could be described as hybrid in terms of their abortion laws. They have restricted abortion—for example, by enacting 15-week bans—but they don't appear ready to ban it altogether.

Are there other rights such as gay marriage that may be under threat as a result of overturning Roe?

Yes. The draft opinion takes pains to say that abortion is a unique decision, and the reversal of Roe applies only to the right to abortion. It does not apply to other rights that, like Roe, are anchored in the due process clause of the 14th Amendment. However, the abortion right in Roe did not originate in a vacuum. It explicitly built on and shares a constitutional lineage with other important rights related to use of birth control, procreation, choice of intimate partners, and choice of marriage partners. These rights, like the right to make decisions about whether to terminate a pregnancy, derive their protection from the due process clause. And these shared constitutional underpinnings were recognized and reaffirmed by the Supreme Court in the Casey opinion. So, there is real concern about the legal implications of reversing Roe. How far does the invalidation of that constitutionally protected right go, beyond just abortion? Despite what the draft opinion says, will the reversal of Roe serve as precedent to reverse other cases that share this constitutional lineage?

It seems difficult to imagine that the analysis in Dobbs, should it be finalized, will not be used to weaken the constitutional footing of these other rights. I expect some states will use the reversal of Roe to unwind not only their abortion laws but also other constitutionally protected rights. Hopefully the Supreme Court, or at least five of its members, will not have the same appetite for reversing gay marriage, or the right to use birth control, or the right to form same-sex intimate relationships. But a reversal of Roe opens this door. Rather than removing the court from the abortion debate, as the court asserts it is doing in the draft opinion, it is placing itself at the center of an even broader debate about fundamental constitutional protections.