Dobbs decision and the future of the Court

Last night, Politico reported about a leaked draft opinion from the US Supreme Court authored by Justice Alito in the Dobbs v. Jackson Women’s Health case. Alito’s opinion indicates that the Supreme Court intends to completely overturn Roe v. Wade and Casey v. Planned Parenthood. I write to give you a few different perspectives on what this monumental decision could mean moving forward, with some links for further reading. 

1. This decision will have a dramatic impact on women’s health in this country, especially for poor women and women of color in states that restrict abortion. The reasons for this include lack of access to quality health care and lower sex education standards in those states. Women of means will likely continue to have access to abortions by traveling to states that allow the procedure.
2. This decision will massively impact privacy jurisprudence generally, not just abortion. The reason for this connects to the Court’s reliance on precedent. The Roe decision relied on previous decisions such as Griswold v. Connecticut, which legalized contraception for married couples. Since Roe, the court has used the right to privacy rationale to decriminalize sodomy and legalize same-sex marriages. Alito’s leaked opinion explicitly targets Lawrence v. TX and Obergefell v. Hodges as cases that were also ruled incorrectly. This could mean a re-criminalization of gay sex in this country and an end to protections for married same-sex couples.
3. The leaked document is a DRAFT. Court opinions often go through multiple drafts that circulate for Justices to comment and make changes. This practice also allows the dissenter(s) to comment on specific aspects of the majority opinion in their dissent, and likewise it allows the majority to respond to the dissent. The leaked document may or may not be the final rationale. However, if Alito is writing this, it is most likely that he has the 5 votes necessary to support the underlying decision.
4. Access to abortion doesn’t split public opinion as evenly as you might think. Pew Research has tracked opinion on this issue for decades. In 2021, 59% of Americans surveyed said that abortion should be legal all or most of the time, with 39% saying that it should be illegal all or most of the time. 20 percentage points is a massive gap in terms of public opinion (for reference, most presiential races are determined by about 5 percentage points).
5. There are a few plausible predictions of why this was leaked:
   1. It was leaked by someone working for a justice in the Court’s liberal wing. The rationale here is that the leaker viewed the potential decision as so disastrous that the leaker wanted to prime the public and stoke public outrage. This is currently the preferred narrative of those on the right. 
   2. It was leaked by someone working for the conservative wing in an effort to temper eventual public outrage. A common tactic during the Trump years was to leak a radical policy plan, then release something a little more moderate as the actual policy (e.g. on environmental or immigration policy). The idea here is to let people’s outrage work through the polity so that by the time the actual policy goes into effect, it isn’t as controversial. I’ve seen this argument from a few people on Twitter.  
6. The leak is major–perhaps the first time a full draft opinion has been leaked in the Court’s history–but it isn’t completelty unprecedented. This tweet thread recounts the history of leaks at the Court.  

Some are intensely focused on the leak and what it will mean for the Court’s legitimacy moving forward. My view is that a Court decision that undoes half a century of privacy jurisprudence is a bigger risk to the Court’s legitimacy. The Supreme Court is our most opaque national political institution, and it benefits immensely from the legitimacy that we confer on it. The American people allow the Court to operate largely behind closed doors because we trust it to do the right thing. The ideological make-up of this court is wildly out-of-step with public opinion on this issue.

We have been here before. What the next few months and years hold is uncertain. What is certain is that we are awaiting a SCOTUS decision that will have massive impacts on women across the country and that could spell the end of protections for gay and lesbian couples, among other privacy concerns.