Wednesday, May 4, 2022

The Leaked Draft Decision in Dobbs: Context and Content

By Richard Storrow (May 4, 2022)

In a widely anticipated move, the United States Supreme Court has voted to overrule Roe v. Wade.  A draft of the decision in Dobbs v. Jackson Women's Health was leaked to the press earlier this week, months before its predicted announcement.  The draft decision devolves abortion rights to the states, many of which had already been busy rolling back abortion liberty to the vanishing point.  Kentucky's new abortion law, for example, would end all abortion care in the state.  Texas's draconian ban extends to a ban on abortifacient medications.  If the draft decision remains unchanged before the Court releases it officially, from that moment the manner in which pregnant persons will seek abortion care will drastically change.  We can expect an uptick of patients traveling from states that prohibit abortion to states that allow it and an increase in self-managed abortion with the aid of telemedicine.  Those without the option to travel and without practical or legal access to telemedicine in essence will be trapped.  The return of the back-alley abortions that proliferated in the decades before Roe was decided in 1973 is a realistic fear. 

The politics of the decision could not be more extreme.  The lopsidedness of the Court made the outcome in Dobbs more or less a foregone conclusion, but assigning the decision to Alito, a caustic critic of the work of justices of great intellect and humility was a reckless though perhaps not perplexing choice.  Sections of the decision read like a list of conservative talking points.  Others are vehement and taunting, heaped up with arrogant, devil-may-care swagger about "abuses of judicial authority" and Roe's being "egregiously wrong."  Whatever one may believe about the analytical strength of Roe and Casey, the decision that re-affirmed Roe in 1992, there is no room for doubt that Alito's draft is devoid of the empathy for the pregnant poor exhibited by those decisions.

Alito's draft decision, if released officially, will further undermine the Court's already battered reputation.  We know that most people oppose overturning Roe.  What we do not know is what the public backlash to the leaked decision will mean for the political complexion of the federal government or whether the leak was intended to gain some sort of advantage for one political group or another.  The political ramifications of this event could be wide-ranging or slight.  Other issues yet to emerge before the midterm elections may have more of an influence than Dobbs on what votes are ultimately cast at the ballot box this fall, but few will forget the manner in which Roe was overruled and how we all knew about it long before we were supposed to.

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Do you really think Roberts chose Alito to write the draft? If he wasn't on board with overruling Roe in the justices' first conference on the case, that choice would have been made by the the senior justice in the majority, likely Clarence Thomas.

Posted by: Bob S. | May 13, 2022 11:16:48 AM

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