This is the second of three articles. This part deals with the way the Supreme Court, according to a draft of an opinion, would implement a decision to end the constitutional right to abortion.
Justice Samuel A. Alito, Jr., has stirred up a wide array of questions about what his draft Supreme Court opinion in the Mississippi abortion case would mean, if that’s the way the ruling does turn out in the end. One puzzling question is why the last two-plus pages of the draft were written at all.
In the preceding 64-plus pages, the draft spells out all of the reasons why the Court would decide that it had no choice but to cast aside – totally – the constitutional right to abortion. Over and over, those preceding pages say that the 1973 decision in Roe v. Wade and its 1992 sequel in Planned Parenthood v. Casey were wrong from the start, have never gained legitimacy, and must be overruled, so that the entire issue of controlling abortion has to be handed back to “the people and their elected representatives.”
In the simplest terms, a decision along those lines would mean that there is not now – and never has existed, legitimately – a constitutional right to abortion.
Why doesn’t this draft opinion close with a simple order to the lower courts to dismiss this case outright? After all, Article III of the Constitution, creating the federal court system, has always required that those courts can only decide genuine, real-world legal disputes. Without an actual case or controversy, there is no jurisdiction that a federal court can exercise.
That, however, is not how Alito’s draft ends. Instead, it declares that the Court felt that it had to spell out “what standard will govern if state abortion regulations undergo constitutional challenge.”
However, the question immediately arises: without the Roe and Casey precedents, without an abortion right to claim, what constitutional challenge could there be?
When someone files a lawsuit claiming that a constitutional right has been violated, the lawsuit must refer to something in the text of the Constitution that will serve as the source of such a right. When the case that became Roe v. Wade was first filed, the lawyers for “Jane Roe” claimed that there existed “a fundamental area of personal privacy secured by the First, Fourth, Fifth, Eighth, Ninth, and Fourteenth Amendments to the Constitution” and that this area of privacy included a right to end a pregnancy.
When the Roe decision emerged in 1973, it was based primarily upon the constitutional right of privacy, as the Court interpreted the Fourteenth Amendment’s Due Process Clause. The right of privacy, according to the ruling, was broad enough to encompass a right to terminate a pregnancy.
Of course, when the Court does issue a final decision in the Mississippi case (Dobbs v. Jackson Women’s Health Organization), and if it does, indeed, uphold the law, it will be necessary for the Court to technically clear the way for the state to begin enforcing it (the law has never gone into effect).
But that could be done with a one-line order, reversing the lower court decision against the law and returning the case for that court to formally end it. The lower court would appear to need only to issue an order saying something like this: “The case is dismissed for failure to state a claim upon which relief can be granted.” That is standard legal phrasing; here, it would mean no constitutional right, no case — period.
A final Supreme Court decision tracking the Alito draft opinion would seem to leave no doubt that the Mississippi legislature did have the power to enact the law, which would ban all abortions — except in rare emergencies — after 15 weeks of pregnancy. An abortion could not be performed even if the pregnancy were the result of rape or incest.
The few concluding pages of the Alito draft specify that, if there were to be any “constitutional challenge” to any state’s abortion law from then on, it would be judged in court by the most lenient standard known to constitutional law.
That standard says that, if the legislature had any “rational basis” for passing a law, the law is valid, constitutionally. And, as the Court has regularly applied that test, the legislature need not state a “rational basis” that it actually had in mind, so long as it can come up with one that it could have asserted.
Applying that test, the draft went through each of the Mississippi legislature’s reasons for passing the 15-week ban, and found them valid. These “legitimate reasons provide a rational basis” for the law, the draft concludes.
Is it possible that Justice Alito was leaving open the possibility that an abortion clinic or doctor performing abortions could come up with some other constitutional theory to use in a future challenge to some state’s abortion restrictions? That does not seem likely, since there certainly was nothing anywhere else in the draft to suggest that. Moreover, the draft had gone over all of the suggested foundations for a constitutional right to abortion, and rejected all of them.
Is it possible, then, that the draft was written that way as a kind of implied invitation to state legislatures to move ahead with new and different restrictions, giving them assurances that those, too, would be upheld?
Some state legislatures are already vowing to consider banning all abortions from the moment of conception, or banning the use of abortion pills, if the Court clears the way. The Alito draft opinion does seem to be anticipating such a response. It reads as if a Court majority would be entirely comfortable with truly wide discretion in state legislatures to take advantage of the abolition of the constitutional right to abortion.
The ”rational basis” test laid out in the draft does not mean that “anything goes,” but it does mean that state legislatures need only avoid doing something that is starkly irrational.
Maybe the only real limit would be the extent of the legislative imagination. Opponents of abortion have spent most of the past half-century planning ways to end the procedure altogether. This appears to be their best opportunity.
The way the Mississippi case unfolded at the Supreme Court illustrates that at least four of the Justices were ready to create such an opportunity. (It takes the votes of only four to grant review of any case; it does take five to decide the outcome.)
Mississippi officials filed their appeal at the Court on June 15, 2020. The document did not ask the Court to overrule its prior precedents on abortion rights, saying explicitly: “To be sure, the questions presented in this petition do not require the Court to overturn Roe or Casey. They merely ask this Court to reconcile a conflict in its own precedents.” A footnote at that point did say that, if that conflict could not be resolved, “the Court should not retain erroneous precedent” – a rather clever, roundabout way of suggesting overruling.
The appeal posed three questions: whether the Court should change its mind and allow at least some bans on abortions before the fetus was viable, what legal standard should be used to decide if a pre-viability ban were enacted, and whether clinics and doctors should no longer be allowed – on behalf of their patients — to challenge abortion restrictions.
When the Court returned in October 20 to begin a new term, Justice Ruth Bader Ginsburg had recently died and the Senate was considering President Trump’s nominee to succeed her, Circuit Judge Amy Coney Barrett. Before Barrett took her seat on October 27, the other Justices had scheduled discussions of the Mississippi case three times without acting on it.
The Court apparently had significant difficulty deciding what to do, because it had the Mississippi case up for private discussion 19 more times – that is, throughout nearly all of that Court term. No one outside the Court can know whether they actually talked about the case each time, or just kept postponing action while pondering what to do.
Finally, on May 17, 2021, it voted to hear the case, but agreed only to consider the first question on whether states could ban any abortion before fetal viability. Even so, that was a clear hint that the Court might be aiming at a broader review than Mississippi had originally suggested.
State officials took the hint. When they filed their full brief in the case, in late July last year, the document contained 49 pages of arguments, and the first 38 were all devoted to asking the Court to overturn both Roe and Casey and to adopt the lenient “rational basis” test for judging any abortion law. The final 11 pages were devoted to arguing the question the Court had agreed to hear, but even there, the brief said that “the best resolution is overruling Roe and Casey.” If the Court now rules as the Alito draft suggests, that would be what Mississippi most wanted.
Tomorrow: The third and final article in this series will examine the potentially wider implications of Justice Alito’s draft. What other constitutional rights might now be endangered?