Summing Up Justice Alito’s Draft Opinion in Dobbs v Mississippi

Justices Kavanaugh, Gorsuch, Kagan, and Alito in the White House as President Donald J. Trump presents the Medal of Free Friday, Nov. 16, 2018, in the East Room of the White House. 2018 (Official White House Photo by Andrea Hanks) Cropped

There’s a lot of legal background to the decision. To really do it justice I need to teach a lesson in Constitutional law and American history, and that could take about an hour, or a 4,000-word blog post that, at the moment, I just don’t have time or mental capacity to write.

To sum up Alito’s draft opinion, he focuses on the abstract intellectual and legal origins of rights. Abortion rights were re-stated in the 1992 case of Casey v. Planned Parenthood. Right now, states may not impose an “undue burden” on an abortion sought before fetal viability. And Alito focuses on the fact that the Supreme Court proclaimed this Federally protected right to an abortion to be founded in two ideas: stare decisis from Roe, and a concept of the 14th amendment called “substantive due process.”

Stare decisis is the idea that once a legal principle is articulated, the courts should stick to that principle, until and unless a very, very good reason comes along to change that rule somehow. In Casey, the Court basically said, “Roe has been the law for twenty years now, so while a lot of people don’t like it, it’s become established precedent.” But Alito says, if the case was always wrong, we should overrule it.

Substantive due process is the idea that there are certain things, which may not be explicitly set out in the Constitution, that a state just can’t do because they intrude on important individual rights. Alito says prior case law provides we can only recognize a right like that if it’s got a strong grounding in our history and tradition. And until the late 20th century, there was no tradition of abortion rights; in fact, abortions were criminalized for nearly all of our history until the 1960’s. So, Roe is overruled, and abortion regulations are going to be treated like any other kind of health and safety laws.

Now, if this becomes the majority decision of the Court, what will actually happen?

First of all, abortion won’t be criminalized all over the country. Individual states will decide for themselves what’s legal or isn’t legal about abortions. We’ll wind up with a patchwork of different legal schemes. Some states are going to keep abortions legal for virtually an entire pregnancy. Others might criminalize abortions after a certain time, or perhaps even forbid them entirely. Several states have “kick-in” laws already on the books that will fall back to about the after-16-week ban that’s in the Dobbs v. Mississippi case we’re getting a preview of. Not hard to figure out that states with more conservative governments are going to impose more restrictions; states with more liberal governments are going to keep their laws; states with more moderate or divided governments are going to find middle ways.

To understand what that might look like, consider gun or alcohol laws right now. Every state has its own independent scheme of regulating guns and alcohol. Abortion is going to wind up like that.

And there is a standard under which abortion regulation laws can still be challenged. It’s a much more deferential standard, but there at least is one. It’s called the “rational basis test,” which means the state needs to be able to articulate some legitimate objective it’s trying to achieve with whatever law is there. Some laws have failed this test. Not many, but some have.

Will some states outlaw abortions completely? I suppose they might, or at least they might try. But not all of them will. And states that have made strong political commitments to securing abortion rights, especially written into their state Constitutions, will keep them. Here in Oregon where I live, there’s no doubt that abortion rights will survive past July of this year exactly as they are now; it’s in the state Constitution.

The leak of the draft opinion is extraordinary. Nothing like it has happened before in any of our lifetimes. The last time this happened was with the Dred Scott v. Sandford opinion, which students of history will recall worked out rather poorly for all involved.

The draft opinion is pretty likely to be genuine. It reads like a pretty classic Alito majority opinion. This statement is not intended as a compliment. While I respect Justice Alito as a jurist, I’d not call him the Court’s strongest writer. This opinion is didactic. It’s defensive. It’s a lot longer than it needs to be and would benefit from an editor capable of more than using the Bluebook and spell-check. It’s deeply grounded in history as a self-justifying basis for law, which is part of Alito’s style, and so is all of the hair-splitting it does.

The Politico article says Alito has the votes of Thomas, Gorsuch, Kavanaugh, and Barrett. Which means this is going to be the majority opinion of the Court. But notice who isn’t on that list of signers: Chief Justice John Roberts. Who, for his entire tenure on the Court, has made a very high priority of building, or rather re-building, the Court’s credibility, gravitas, and respectability as an institution.

Now, it’s complete Kremlinology to speculate about who is responsible for the leak. Anyone other than the reporter who says they know who leaked this draft opinion is almost certainly just guessing. But the list of suspects is pretty small. There are nine Justices. Each of them has four law clerks. There’s some support staff, but the support staff wouldn’t know how the Justices had voted in conference.

The fact that the opinion’s written by Alito is interesting. It suggests that Roberts didn’t vote with the majority. And it suggests that the most senior Justice in the majority, Clarence Thomas, either didn’t want to write it or would have written it using a legal theory that didn’t gather five votes. So, the next-most senior Justice in the majority is Alito.

I think that the break from tradition resulting in the leak may be aimed at either defusing the political response by previewing the opinion, or at trying to get one of the majority to realize that this decision erodes the concept of stare decisis. That doctrine is the foundation of the Court’s claim to be a trustworthy and reliable pronouncer of what the law is rather than what the Justices want it to be. Both of these things, in my opinion, point to someone who thinks like Chief Justice Roberts, someone who cares at least as much about the Court’s claim to legitimacy as about the result of this particular case (as important as that is).

Now, I could be WAY wrong. But that’s what I’m thinking.

And it’s not really important, either. Unless this becomes something that happens more and more; because if it does, there is less difference between the Court and the White House or Congress. If those kinds of political pressures are going to influence the laws we live under, I’d rather those pressures be out in the open and subject to democratic checks.

What we ought to worry about is, since it looks a lot like the several states are going to be given the football of regulating abortions, we need to start paying more attention to who gets elected to state legislatures. Which we ought to have been doing all along.