WASHINGTON, DC – Following revelation of a draft opinion written by Justice Samuel Alito in Dobbs v. Jackson Women’s Health Organization for a majority of the Supreme Court—an opinion that, were it to be formally issued by the Court, would overrule Roe v. Wade and Planned Parenthood v. Casey, thus eviscerating the constitutionally-protected right to abortion—Constitutional Accountability Center President Elizabeth Wydra issued the following reaction:

The leaked draft opinion gets the Constitution outrageously, dangerously wrong. It says that the “Constitution makes no reference to abortion” without meaningfully engaging with what the Constitution does say: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The right to abortion is rooted in this broad and sweeping language in the Fourteenth Amendment. 

These explicit protections for equality and liberty were written into our national charter at a time when the question of what it truly meant to be free, as a matter of law, was urgent and pressing.  After the brutality of enslavement, true freedom, human dignity and equal citizenship demanded an irreducible minimum of liberty that included the right to decide for one’s own self whether, when, and with whom to form a family. The Fourteenth Amendment provided this measure of equality and more.

Most Americans understand the plain truth reflected in these protections: a person cannot truly be free, and is not truly an equal member of society, if they do not get to decide for themselves this most basic question of bodily autonomy. And yet we saw last night a draft majority opinion for the Supreme Court that would unabashedly rip this freedom away, relying on a breathtakingly flawed reading of the Constitution.

Indeed, nowhere does the draft opinion grapple with this fundamental constitutional truth. It frighteningly bulldozes past the Constitution in the direction of achieving a long-desired ideological agenda. And the draft opinion makes plain its ambition. Abortion rights might be the unenumerated rights that would fall in this particular opinion, but other essential rights, including the right to marry or to access birth control, hang by a thread as well.

While this is only a draft opinion and the right to access abortion that the Constitution guarantees has not yet been stripped away, it is nonetheless jaw-dropping to see a draft Supreme Court opinion so blatantly disregard fundamental rights, with no signs of stopping at abortion.

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Resources:

CAC case page in Dobbs v. Jackson Women’s Health Organization: https://www.theusconstitution.org/litigation/dobbs-v-jackson-womens-health-organization/

“Reproductive Originalism: Why the Fourteenth Amendment’s Original Meaning Protects the Right to Abortion,” David Gans, SMU Law Review Forum, March 24, 2022: https://scholar.smu.edu/smulrforum/vol75/iss1/5/

“No, Really, the Right to an Abortion Is Supported by the Text and History of the Constitution,” David Gans, The Atlantic, November 4, 2021: https://www.theatlantic.com/ideas/archive/2021/11/roe-was-originalist-reading-constitution/620600/

“The Mississippi Abortion Case Threatens the Right to Use Birth Control, Marry, and Even Make Choices About Sex,” Slate, David Gans, October 12, 2021: https://slate.com/news-and-politics/2021/10/mississippi-abortion-birth-control-lgbtq-scotus.html

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Constitutional Accountability Center is a think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history. Visit CAC’s website at www.theusconstitution.org.

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