Court decisions don’t often make the news. How To Get Away With Murder and Suits portray law and the court as scandalous, mysterious, and sexy, but our nation’s court system rarely makes headlines during our daily lives. Even decisions from our Nation’s Highest Court, the Supreme Court, often get little to no coverage. The nine-person Court generally goes quietly about its business. Their decisions go unnoticed by the media and public unless something truly monumental happens.
Yet, over the last week, the Court encountered an explosion of coverage by media outlets worldwide. The spotlight is shining on the Supreme Court due to a historic leak of a draft opinion surrounding women’s rights. First reported on by Politico and confirmed by Chief Justice Roberts of the Court, the leak concerned the 98-page draft opinion of Dobbs v. Jackson’s Women’s Health Organization. Dobbs, which the Court heard for oral argument on December 1, 2021, is the latest opportunity for the Court to directly address whether a right to choose is a constitutionally protected right read into the Due Process Clause of the Fourteenth Amendment or if it is a matter left to the States to regulate without Fourteenth Amendment protection.
The Court’s decision became clear when a draft decision authored by Justice Samuel Alito for the majority leaked to the public last Monday. The Court is poised to strike down and overrule its precedent set in Roe v. Wade and Planned Parenthood v. Casey, which have served as the legal precedent for elevated protection of a woman’s right to choose since the decision in Roe was issued on January 22, 1973. In reversing the protection afforded a woman’s right to choose, the Court states that since Roe did not end the debate around the “rancorous national controversy,” that is a woman’s right to choose, it should be overruled. However, to overcome the prior decisions, the Court must overcome the longstanding legal principle of stare decisis. Under the doctrine of stare decisis, courts aim to achieve the goal of deciding similar cases in a similar fashion by following the decisions that past Judges and the Court have already made.
However, as the Court states in its draft opinion, “stare decisis is not an inexorable command.” Meaning, when the circumstances are right, the Court can overturn decisions that are constitutionally improper and/or poorly reasoned. To justify its decision to overrule a woman’s right to choose, Justice Alito points to cases such as Brown v. Board of Education, which famously–on paper at least–ended school segregation and the separate but equal doctrine espoused by the Court in Plessy v. Ferguson, which held that segregation was acceptable under the Constitution so long as the facilities provided were “separate-but-equal.” Paradoxically, Alito points to cases that, for the vast majority of instances, protected rights being attacked by the rule of a pure democratic majority. However, the Court now seeks to “return to the people,” a woman’s right to choose.
As a result, the Court has determined that a woman’s right to choose will be afforded no additional constitutional protection. It will be tested under the lowest standard provided by the Court in determining a law’s validity under the Constitution: the rational basis test. Under this test, so long as the legislature has a legitimate reason and a rational basis for regulating an activity, such as a woman’s right to choose, the Court will not stand in the way of that law. Right now, and until this decision in Dobbs is released, the standard was elevated and legislatures could not place an “undue burden” on women seeking an abortion per Casey linked above.
The reactions to the leak and its potential ramifications on a woman’s access to abortion have elicited reactions that span from exhilaration to devastation. Further, the ripple effect of the potential decision is already being felt around the Country. An anti-choice bill in Louisiana’s Republican-led legislature, as reported by The Washington Post, passed committee and has the potential to make certain abortions prosecutable as homicides. Conversely, Democratic parties nationwide have condemned the leaked decision as heartbreaking and emphasized the importance of voting, per a statement issued by Texas Democrats.
The polarity and divisiveness of the issue is not poised to leave the national discourse simply because the Court reverses course on Roe. It will continue to rage on, and a group traditionally marginalized and less protected, a group that needs the Court to protect its rights from a pure democratic majority, has been left with no recourse. Rather than do what many believe the Courts are there to do, protect those who are disenfranchised and marginalized, the Supreme Court, in a decision poised to be authored by Samuel Alito, is considering leaving this critical issue to State Legislatures. This is irrespective of whether these Legislatures are truly representative of the people or constituents’ opinions because of gerrymandered maps and farcical campaign finance inequality. As a result, the Court has turned the Due Process Clause of the Fourteenth Amendment from a shield protecting rights and the disenfranchised into a sword that can also strike rights from the record, even fifty years later.
Christopher Becker is a civil litigator practicing in New York. Christopher graduated from the University of Alabama’s School of Law in 2016. There, he was a Senior Editor of the Civil Rights and Civil Liberties Law Review.