Draft Opinion Overturning Roe v. Wade Won’t Have Ripples, Legal Experts Say

By Matthew Vadum
Matthew Vadum
Matthew Vadum
Matthew Vadum is an award-winning investigative journalist and a recognized expert in left-wing activism.
May 5, 2022 Updated: May 6, 2022

News analysis

Conservative legal experts consulted by The Epoch Times reject predictions by left-wing lawmakers that if the Supreme Court formally adopts the leaked majority draft opinion striking down Roe v. Wade, the high court’s conservative majority will follow up by overturning precedents protecting same-sex marriage and civil rights.

Roe v. Wade is the seminal 1973 precedent that federalized abortion policy, overriding the states and making the procedure lawful throughout the entire United States.

On May 2, not long after Politico published the draft decision written by Justice Samuel Alito in Dobbs v. Jackson Women’s Health Organization, court file 19-1392, U.S. Rep. Alexandria Ocasio-Cortez (D-N.Y.) raised the alarm on Twitter, claiming, “As we’ve warned, SCOTUS isn’t just coming for abortion—they’re coming for the right to privacy Roe rests on which includes gay marriage + civil rights.”

The radical lawmaker, known by her initials AOC, also retweeted a post by Slate writer Mark Joseph Stern. Stern wrote: “Alito’s draft opinion explicitly criticizes Lawrence v. Texas (legalizing sodomy) and Obergefell v. Hodges (legalizing same-sex marriage). He says that, like abortion, these decisions protect phony rights that are not ‘deeply rooted in history.’”

The Supreme Court has since confirmed the authenticity of the document, describing it as a work in progress. The draft opinion would not outlaw abortion, a procedure on which the U.S. Constitution is silent, but states could do so. When Roe was decided, 30 states still forbade abortion at all stages, the draft states. It remains unclear when the final version of the court’s opinion will be formally released by the court.

During oral arguments on Dec. 1, 2021, in Dobbs, the Supreme Court heard Mississippi’s call to reverse Roe v. Wade, a landmark 7-2 decision that held a woman’s right to an abortion was safeguarded by her right to privacy under the Fourteenth Amendment. At issue is the state’s Gestational Age Act, which allows abortions after 15 weeks’ gestation only for medical emergencies or severe fetal abnormality. Citing Roe, lower courts held that the state statute was unconstitutional.

The draft opinion, which has been welcomed by conservatives and constitutionalists, has become a lightning rod for the left. Well-funded abortion groups have mobilized protesters around the Supreme Court building, which increased its security to deal with potential threats, and there have been protests nationwide. As of press time, the White House had refused to condemn the unprecedented leak of the high court’s work product.

After Politico published its article, President Joe Biden said, “If the court does overturn Roe, it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose.”

“And it will fall on voters to elect pro-choice officials this November. At the federal level, we will need more pro-choice senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law.”

Speaker of the House Nancy Pelosi (D-Calif.) called the draft “an abomination,” adding “this monstrous draft decision is a sweeping and severe restriction of Americans’ rights.”

In the draft, Alito states that in 1973 the Supreme Court arrogated to itself the power to impose a nationwide rule governing abortion, ignoring the principles of federalism which would leave the issue in the hands of the states, where it traditionally rested. Instead, Alito contends, a results-oriented high court ignored longstanding tradition and practice and invented the right to abortion—in an embarrassing, poorly reasoned mockery of proper constitutional jurisprudence.

Even abortion supporters have been hard-pressed to defend the legal reasoning found in Roe, Alito writes. One high-profile constitutional scholar, John Hart Ely, wrote that he “would vote for a statute very much like the one the Court ended up drafting” had he been “a legislator,” but in his view Roe was “not constitutional law” at all “and gave almost no sense of an obligation to try to be.”

Alito notes that Justice Byron White wrote in his dissent at the time that the court was mistaken. Its decision represented the “exercise of raw judicial power,” sparking a national controversy that polarized and toxified the nation’s political culture for a half-century.

In an interview with The Epoch Times, Curt Levey, president of the Committee for Justice, said the left is engaged in “purely hysterics” right now.

The draft’s reasoning is “very specific to abortion, and the utter lack of any constitutional basis for the original Roe ruling.”

“This is limited to the issue at stake, but if you want to draw any larger conclusion,” you could conclude that in the future if “a liberal Supreme Court wants to invent a new right, they should at least go through the exercise of finding some plausible constitutional basis for that.”

The year 1973 was “the height of judicial activism and the ‘living Constitution’ and making things up, that completely loosey-goosey standard,” Levey said.

The Obergefell ruling, which legalized same-sex marriage throughout the country, has “more of a constitutional basis than Roe ever did,” he said, adding that the claim that interracial marriage will be banned by the court is nonsense because the ruling allowing it “has a very strong constitutional basis.”

Levey’s nonprofit describes itself as “devoted to restoring the Founders’ vision of a federal judiciary governed by the rule of law and anchored by the Constitution.”

Jim Burling, vice president of legal affairs for the Pacific Legal Foundation (PLF), a nonprofit public interest law firm that has won 14 cases before the Supreme Court, was also interviewed by The Epoch Times.

After noting that PLF doesn’t get involved in abortion-related cases, Burling said it was his opinion that many of those now presenting a “parade of horribles” the draft opinion could lead to, had not—or could not—read it.

“Some of the opposition is fascinating,” he said. “It’s probably as much a reflection on the fact that our schools don’t teach people to read anymore.”

If the critics had read Alito’s draft, they would know “that the court was very careful to say that this reversal was consistent with principles of stare decisis [i.e. following precedent].”

“It specifically talked about these other cases, Obergefell and others, and said, this doesn’t necessarily mean anything to those cases.”

Many of the critics of the draft believe “the right of persons who are pregnant are the only rights that are under consideration,” he said, adding that many Americans believe that “the right of the child to be born is equally important, perhaps more important than some of the rights of the pregnant person.”

Matthew Vadum
Matthew Vadum is an award-winning investigative journalist and a recognized expert in left-wing activism.