Is the leaked Supreme Court draft opinion a roadmap for how this court could overturn landmark cases in the future?
A leaked draft opinion in a Supreme Court case about abortion reveals that a majority of the justices were, at the time of this draft's release, in favor of overturning the precedent set in Roe v Wade that protected abortion access.
In our recent episode on judicial precedent, we talked about how the Supreme Court interprets the law, and how precedent gives that interpretation power, ensuring the law is applied equally to everyone. We also talked about how and why the Supreme Court might reconsider, modify, or overturn its own precedent. In this episode, we look at how the draft opinion treats precedent, and how that differs from the way the Supreme Court has treated precedent in the past, including in decisions about abortion. And we talk about the impact this could have, should this draft opinion become final, both on the Supreme Court, and on society.
We talk to Nina Varsava, a law professor at University of Wisconsin, Madison who studies judicial precedent, and wrote the article, "Precedent on Precedent," and Rachel Rebouche, a law professor at Temple University who specializes in family law, health care law, and comparative family law, and has written about the potential impact of overturning Roe v Wade.
Transcript
Precedent and the Leaked Draft SCOTUS Opinion
Hannah McCarthy: [00:01:42] Hey, everybody, it's about to be really apparent, but I am tracking this with a bad cold. Life happens.
Hannah McCarthy: [00:01:52] The Supreme Court is an institution, an institution with over 230 years of weighty decision making.
Hannah McCarthy: [00:02:05] Now, many of these decisions happen without the majority of people in the United States paying much attention. But every once in a while, you get a landmark.
Hannah McCarthy: [00:02:23] A decision that fundamentally alters lived experience. That has widespread legal implications. That throws the nation into heated debate or celebration.
Hannah McCarthy: [00:02:42] It's decisions like these that people either come to depend on or commit their lives to working against. But come on. The Supreme Court changing its mind.
News Audio: [00:02:52] According to an initial draft majority opinion written by Justice Samuel Alito circulated inside the court and obtained by Politico. The Supreme Court has voted to strike down the landmark Roe versus Wade decision.
Hannah McCarthy: [00:03:05] What are the chances of that? This is Civics 101. I'm Hannah McCarthy.
Nick Capodice: [00:03:11] I'm Nick Capodice.
Hannah McCarthy: [00:03:12] And today we are talking about the leak that shook the nation. A draft opinion from the Supreme Court authored by Justice Samuel Alito, arguing that Roe v Wade should be overturned, arguing that it was the wrong decision to make in the first place, that the federally protected right to abortion as a part of a right to privacy, the precedent established by Roe v Wade should not exist.
Hannah McCarthy: [00:03:41] Right now, and we're tracking this on June 7th, 2022. That opinion is not official. However, it marks an historic moment in how the Supreme Court is treating its own landmark precedent. And no matter the outcome, this draft is a snapshot of how our current Supreme Court is evaluating the merits of its own past precedent in one of the most controversial and significant landmark decisions in recent history.
Hannah McCarthy: [00:04:06] In our episode on judicial precedent, we talked about how the Supreme Court rarely overturns or reverses its own precedent. We also talked about how the precedent set in Roe v Wade was modified in 1992. Today we are talking about how the draft opinion in Dobbs V Jackson Women's Health Organization looks different and what that draft opinion should it be adopted could mean for our country and for judicial precedent itself.
Nick Capodice: [00:04:31] All right, Hanna, let's unpack the case at the center of this leak.
Hannah McCarthy: [00:04:34] The case which we will refer to in this episode as Dobbs, started in 2018 when Mississippi passed a law that banned abortion after 15 weeks, except in cases of medical emergencies or severe fetal anomaly. And the state's only abortion clinic, Jackson Women's Health Organization, sued the state's health department, naming the state health officer Thomas Dobbs. They said that the new law violated the precedent set by Roe v Wade and upheld by Planned Parenthood v Casey, the 1992 case that modified Roe v Wade but said that states could not outright ban abortion.
Rachel Rebouche: [00:05:10] One of the things that most people interpreted Casey to provide is that states can do a lot to regulate abortion well before viability, that they can't ban it. And that's what Mississippi did.
Hannah McCarthy: [00:05:22] This is Rachel Rebouche. She's a law professor at Temple University, where she focuses on reproductive health, including abortion law.
Rachel Rebouche: [00:05:29] Mississippi passed a law that said if passed 15 weeks, no, no legal abortion in the state, that's well before viability. And the fact that the court took the case in the first place suggested to most people that the court was either going to overturn Roe or announce a new test, because it's not as if it wasn't clear that Casey had stood for the proposition that you can't ban abortion before viability.
Hannah McCarthy: [00:05:52] The district court, which is bound by the precedent set by the Supreme Court, agreed with Jackson women's health and said, yes, this law does violate the rule. So Mississippi, that's the Dobbs side appealed in circuit court and the circuit court upheld the district court ruling. It said, yes, this law cannot stand.
Nick Capodice: [00:06:12] So if the Supreme Court did not take up this case, then that law would not have been able to take effect in Mississippi.
Hannah McCarthy: [00:06:18] Correct.
News Audio: [00:06:19] Significant breaking news just into us. The Supreme Court has agreed to take up a major abortion case next term concerning a controversial Mississippi law that bans most abortions after 15 weeks.
Nick Capodice: [00:06:31] Now, the Supreme Court is famously choosy about what cases it takes. It gets thousands of requests a year, and it has to decide which 60 to 80 or so are of national importance.
Hannah McCarthy: [00:06:43] Right. And it's important to note that in the Casey decision in 1992, the Supreme Court thought that maintaining a precedent was important, but that the use of a trimester system to determine when a state could impose restrictions was outdated. So they updated the rule states had to follow to impose restrictions. This rule was that states could not impose a, quote, undue burden on abortion access, but it gave states a lot more leeway to pass restrictions than the original trimester rule in Roe v Wade.
Nick Capodice: [00:07:14] And in our recent episode on precedent, we talked about the reasons why the Supreme Court might reconsider or overturn precedent.
Hannah McCarthy: [00:07:22] And this is known as a stari decisis analysis. Stare decisis is the doctrine of following precedent. So a stare decisis analysis helps the court decide if a precedent should still stand. Basically, is this precedent working? And an analysis typically involves several factors. So let's go through them. Was the law unworkable, meaning it isn't practical or feasible in practice?
Nick Capodice: [00:07:48] And another was if the law was an outlier like it didn't fit with other precedents in similar cases.
Hannah McCarthy: [00:07:54] And third, are there what are called reliance interests.
Nick Capodice: [00:07:58] And that's how much the law, and society and people have come to rely on that precedent.
Hannah McCarthy: [00:08:04] Right. The court needs to consider the impact changing a precedent might have on making sure the law is applied consistently over time. And the last one is, was the reasoning in the case bad or have the facts changed?
Nick Capodice: [00:08:18] So in Planned Parenthood v Casey, how did the Supreme Court address these factors?
Hannah McCarthy: [00:08:24] Here's Justice David Souter, one of the justices who authored the majority opinion, talking about how these factors applied in Casey.
Justice David Souter: [00:08:31] Despite the controversy it has produced, the decision has not proven unworkable in practice, is undoubtedly engendered reliance in countless people who have organized intimate relationships and made choices that define their views of themselves and their places in society. In the two decades since it was handed down. It has not been rendered doctrinally anachronistic. By other legal developments in the past 20 years, and the factual premises on which it rests are no different today from those on which the ruling rested initially.
Nick Capodice: [00:09:01] So it's not unworkable. People are relying on it, and there hasn't been a significant enough shift in the law in 20 years to suggest this decision was an outlier.
Hannah McCarthy: [00:09:12] And furthermore, the decision in case he was really clear about how important it was to not overturn the precedent in Roe when it came to the legitimacy of the Supreme Court, it put a lot of weight on the doctrine of stare decisis. Here is Justice Sandra Day O'Connor, another author of the majority opinion.
Justice Sandra Day O'Connor: [00:09:30] We conclude that the central holding of Roe should be reaffirmed. Some of us as individuals find abortion offensive to our most basic principles of morality, but that can't control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code. After considering the constitutional questions decided in Roe, the principles underlying the institutional integrity of this court and the role of stare decisis, we reaffirm the constitutionally protected liberty of the woman to decide to have an abortion before the fetus attains viability and to obtain it.
Nick Capodice: [00:10:12] Basically, it's really important to maintain our credibility and not be seen as a court that would prioritize personal feelings over the law.
Hannah McCarthy: [00:10:21] And it's worth noting that this was not a unanimous verdict. The court in 1992 was really divided over this, but the Court ultimately reaffirmed the decision in Roe.
Nick Capodice: [00:10:32] So when the Supreme Court of 2022 took up. Dobbs This is also something they could have done. They could have modified the precedent again without overturning it.
Rachel Rebouche: [00:10:41] In fact, a number of people thought that's what this case would do, that the Supreme Court could essentially gut Roe, ditch the test at establishing Casey, and announce a new test that's much easier for the states to meet in upholding state legislation but not overturn Roe.
Hannah McCarthy: [00:10:59] This has been called a rational review.
Rachel Rebouche: [00:11:02] We're going to strike down state restrictions that aren't rational. That's a really easy test for states to meet. Case law has been interpreted as if you could just pass the laugh out loud, test that your carry law is going to be upheld. But, you know, Roe is still good law. There's still a constitutional right to abortion. It's just that viability is and unworkable line. And this is the new test for states to pass.
Hannah McCarthy: [00:11:29] The draft opinion written by Justice Alito could have suggested that the Supreme Court was going to make it even easier for states to restrict abortion without completely overturning Roe.
Rachel Rebouche: [00:11:39] That's not what Justice Alito wrote.
Nick Capodice: [00:11:41] And we're going to get into what Justice Alito wrote right after this.
Nick Capodice: [00:12:08] We're back and we are talking about the leaked Supreme Court draft opinion in Dobbs v Jackson authored by Justice Samuel Alito.
Hannah McCarthy: [00:12:17] In this draft opinion, Justice Alito says that Roe v Wade was bad precedent.
Rachel Rebouche: [00:12:22] He clearly returned abortion back to the states.
Hannah McCarthy: [00:12:26] This is Rachel Rebouche.
Rachel Rebouche: [00:12:27] And not as a matter of constitutional protection.
Nina Varsava: [00:12:31] Also, something that might be less explicit or getting less attention about the draft opinion is that it also overrules Casey on stare decisis itself.
Hannah McCarthy: [00:12:42] This is Nina Varsava. She's a law professor at the University of Wisconsin, Madison, and she studies judicial precedent.
Nina Varsava: [00:12:49] I do think that this case could represent a significant shift in how the court deals with stare decisis.
Nick Capodice: [00:12:58] What does she mean when she says that the draft opinion overrules Casey on stare decisis itself?
Hannah McCarthy: [00:13:04] Basically, Alito's draft opinion is saying that Roe was wrong in the first place, that abortion should never have been a protected right, and that the way that Casey determined that Roe should be upheld was also wrong.
Nina Varsava: [00:13:20] Let me just quote from him. So he says that Roe's constitutional analysis was "far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed." So he's saying basically that on his view, this decision was so wrong that it was egregious and that this should be weighed heavily in a stare decisis analysis.
Hannah McCarthy: [00:13:45] Nina says that the draft opinion focuses a lot on the factor of reasoning, of whether the original decision was an error.
Nina Varsava: [00:13:52] In the current draft opinion. They seem relatively untethered in the sense that it seems that the question is whether the current justices agree with the past case or not. And precedent is meant to put a block on that kind of decision making, to put some kind of meaningful barrier in place that even if a court does disagree on the merits with the past decision, it's still supposed to follow it. So it will be interesting to see whether those factors remain and how the court deals with them going forward.
Nick Capodice: [00:14:29] It does make me wonder if putting a lot of emphasis on reasoning in this case that could serve as a new precedent itself, where the court finds it easier and easier to question the reasoning of previous decisions. But what about something like Reliance Interests, which is how much society depends on access to abortion? Does the draft opinion say anything about that?
Nina Varsava: [00:14:51] So in Casey, the court reason that people were relying on Roe and that the reliance was important and widespread, a kind of societal reliance. In the draft Dobbs opinion, Alito says that the reliance interest at stake here, to the extent that there are any, are intangible and abstract, and that those kinds of interests do not count for anything in a stare decisis analysis. So this is very different from Casey. And different, I think, from an intuitive understanding of reliance interests.
Nina Varsava: [00:15:23] Women planning their lives based on the belief that abortion would be available to them should they need it or society. Structuring itself based on that idea, women planning their educations and their careers with the assurance that they would be able to access abortion. Those are all, I think, intuitive reliance interests, but they're not relevant or not legitimate in a story decisis analysis according to the draft opinion. So that's another big shift from Casey.
Nick Capodice: [00:15:58] What precedent is this opinion working off of since, as Nina said, it seems like a shift?
Nina Varsava: [00:16:04] I should note that the shift actually began even before. Dobbs But in a more subtle way.
Hannah McCarthy: [00:16:10] Nina noticed that this draft opinion looks a whole lot like an opinion from a different Supreme Court case that she wrote about in 2020. This is a case called Ramos v Louisiana that was about whether the Sixth Amendment applied to states, in essence, whether a state had to abide by the rule that a person could only be convicted of a serious crime by a unanimous jury. And the Supreme Court reached a majority opinion saying that, yes, this Sixth Amendment rule applied to states, including Louisiana. Within that case, the justices spent a lot of time debating how precedent should work, and there were several concurring opinions.
Nick Capodice: [00:16:48] And quickly, concurring opinions are when a justice agrees with the final decision, but disagrees with parts of the decision or the rationale behind it.
Hannah McCarthy: [00:16:56] And a lot of times these concurring opinions give you a context for how the justices are feeling.
Nina Varsava: [00:17:01] Something that stood out to me about that decision is that Justice Kavanaugh issued a concurrence in which he laid out a set of factors in an effort to articulate a framework or roadmap to guide overruling.
Hannah McCarthy: [00:17:16] Basically, Justice Kavanaugh's concurring opinion talked a lot about those factors the Supreme Court has traditionally used to reconsider precedent and laid out a different way that they could do it. And Nina, who studies judicial precedent, wrote a paper about this case.
Nina Varsava: [00:17:32] So in my paper about that Ramos decision, I highlighted Kavanaugh's opinion and suggested that it seemed as though he was attempting to lay the groundwork for future overruling.
Hannah McCarthy: [00:17:43] And then two years later, the draft opinion in Dobbs comes out.
Nina Varsava: [00:17:47] And in the draft Dobbs opinion, Justice Alito takes his framework largely from that Kavanaugh concurrence. So he cites it five times and lists about 30 cases. That is almost the exact same list as a list of cases that Kavanaugh included in that concurrence. It's a list of celebrated cases that had overruled previous decisions. I see this as an attempt to make this overruling seem more palatable to say, Look, we've done this a lot of times, and that people have have actually celebrated these over rulings.
Nina Varsava: [00:18:22] But I was still surprised to see how much space and attention that concurrence got in the draft Dobbs Opinion. How well it worked, basically because it wasn't even a majority opinion. It was just one justice going out on his own to articulate a roadmap for overruling. And Alito really seizes on this and takes advantage of it to articulate this new set of stare decisis factors in DOBBS.
Hannah McCarthy: [00:18:55] Basically, in this draft opinion, Justice Alito is making an argument about precedent, something the Supreme Court takes very seriously. And the rationale for that argument looks a lot like the rationale laid out by a sitting Supreme Court justice in a concurring opinion from a recent case.
Nina Varsava: [00:19:13] So here in the context of Dobbs, it looks as though as soon as the court's composition changed so that we have a majority of ideologically conservative justices, then they move to overturn one of the most politically and morally charged decisions in recent history, maybe ever. So that looks to some people as though the court is doing politics or the justices are acting on personal morality and ideology rather than applying the law. And so a lot of people are reasonably concerned that the court's legitimacy in the eyes of the public will suffer if the court now proceeds to overrule Roe and Casey.
Nick Capodice: [00:19:51] And for as far as what this means for abortion access on a societal level, do we have a sense of what might happen if this draft opinion stands?
Hannah McCarthy: [00:20:03] There are currently 26 states that have drafted legislation that would ban abortion under certain circumstances should Roe v Wade and subsequently Planned Parenthood v Casey be overturned. These laws are known as trigger bans. Essentially, the state laws are triggered to go into effect as soon as federal law allows it.
Rachel Rebouche: [00:20:24] If Justice Alito's draft becomes law, those 26 states will ban most or almost all abortion within their borders.
News Audio: [00:20:32] In Alabama, lawmakers passed a near-total ban on abortions in Kentucky and Florida. Bills have been signed banning abortions after 15 weeks.
Rachel Rebouche: [00:20:41] Some will do so with very few exceptions of any maybe for a medical emergency.
News Audio: [00:20:47] If the ruling is final. 30 days later, Tennessee's trigger ban would outlaw abortions, with just one exception if the patient's life is in danger.
Rachel Rebouche: [00:20:56] Some will ban with exceptions for sexual assault or severe fetal anomaly. But half the country will criminalize or severely punished or both.
News Audio: [00:21:08] A new amendment in the state of Missouri is trying to stop women from crossing state lines to access abortion services.
Rachel Rebouche: [00:21:14] The other half the country will have states like California and Connecticut that are legislating to protect abortion rights.
News Audio: [00:21:21] New York poised to become a safe haven for women seeking abortions once the Supreme Court reverses Roe v Wade. Abortion is protected by state law as part of the Reproductive Health Act.
Rachel Rebouche: [00:21:32] They are legislating to protect their providers in the state and the patients who travel to those states from states that now ban abortion. But then there is a whole host of states that may not rush to ban abortion. They're not going to criminalize it, but they're not necessarily going to repeal the laws that they have on the books. It'll be it'll be a pretty complicated legal landscape.
Hannah McCarthy: [00:21:54] Rachel also says that a lot of legal scholars think that overturning Roe and leaving abortion access up to the states will lead to a lot of complications.
Rachel Rebouche: [00:22:03] Returning abortion to the states is going to be anything but workable. It is going to be a landscape that, as we've discussed, is very is dramatically complex. But it will also incite interstate conflict. And depending on who is president, it will also spark intra jurisdictional conflicts between states and the federal government. Some states are going to not just try to ban abortion in their borders, but they might try to ban it outside their borders. Some states are going to try to protect people who are coming into their states from out of state, and they're going to shield their providers from other actions that would be taken against them from across the country. We're going to see some novel stuff. And and so I guess I would just leave it at that.
Hannah McCarthy: [00:23:00] And it's not just the legal landscape. It's the social landscape.
Nina Varsava: [00:23:04] If Roe is overruled, then we'll have some women who could rely on access to abortion for their whole reproductive lives, whereas some won't be able to access abortion and won't have that reassurance that they could access it if they need to. Many people have organized their lives based on the expectation that abortion would be available to them if they needed to access it. And overruling Roe in case it will will upset those expectations will require people to re conceive their lives and their futures.
Nick Capodice: [00:23:36] I want to know about other 14th Amendment protections, because we've talked about how Roe was built on precedent that came before it, like marriage rights, rights for incarcerated people, access to contraception. If Roe is undone, what does that mean for all the precedent that came before it?
Rachel Rebouche: [00:23:55] You know, I'm not sure. I mean, I think that this is certainly profound for the 14th, the interpretation of the 14th Amendment, the kind of originalism that's at the heart of Justice Alito's opinion. If five justices are willing to sign on to that originalism for this, it could suggest that they are persuaded by originalists and textualist arguments for other things, which is, as again, is, is creates a test, creates a standard for thinking about what the Constitution protects. That might be a little more narrow than other approaches.
Nick Capodice: [00:24:41] And whether or not this draft opinion stands. It has given the American people a window into the process of the Supreme Court revisiting its own decisions. Today's episode was written and produced by Christina Phillips with help from Hannah McCarthy. Our staff includes Jacqui Fulton, and Rebecca Lavoie is our executive producer. Music In this episode by David Celeste Ketsa, Marten Moses, Xylo-Ziko, Brandon Moeller, Blue Dot Sessions and Cospe. Civics 101 is a production of NHPR. New Hampshire Public Radio.