Overturning precedent? Harvard Law faculty weigh in on leaked draft Supreme Court opinion and future of abortion

Authority of Law statue outside the U.S. Supreme Court building

On May 2, the news outlet Politico published a leaked draft of a majority Supreme Court decision by Justice Samuel Alito overturning Roe v. Wade. While not final, the document is believed to indicate that at least five members of the Court have voted to reverse the 1973 precedent that legalized abortion, in a case, Dobbs v. Jackson Women’s Health, which the Court is expected to decide by the end of this term. The leak of a draft opinion is unprecedented in the Court’s modern history. Across major news outlets and on social media, Harvard Law scholars swiftly reacted, weighing in on the leak and the implications of the draft opinion.

With State Abortion Restrictions Looming, Some Officials Promise Not to Enforce Them

May 25, 2022

A new wave of abortion restrictions is expected in half of the U.S. if the Supreme Court overturns Roe v. Wade. Some local officials are pledging not to enforce them, potentially creating uneven legal landscapes within conservative states that are home to more liberal urban areas. District attorneys in metropolitan areas including Atlanta, New Orleans, Dallas and San Antonio have said they won’t prosecute abortion providers or others, including those who assist a woman in obtaining the procedure. Current state attorneys general who are up for re-election in Michigan and Wisconsin, as well as Democratic candidates for that office in Georgia and Arizona have likewise pledged not to enforce any laws banning abortion in their states. … In most states, local prosecutors are the primary decision makers on what criminal cases to bring in their jurisdictions, but in many cases state attorneys general can usurp that authority if they receive authorization from the governor, said James Tierney, a former Maine attorney general. Some states and their legislatures could test those boundaries, he said. If Roe is overturned, “we’re going to go through a phase of uncontrolled litigation filed by district attorneys and attorneys general around the country in an unpredictable fashion,” Mr. Tierney said.

Continue Reading at The Wall Street Journal »

Climate Risk From ‘Zombie’ Rules

May 23, 2022

The 6-3 conservative majority of the U.S. Supreme Court is apparently poised to constrain climate action by the Environmental Protection Agency in a decision expected before the end of the SCOTUS term in June. The case, West Virginia v. EPA, involves the Obama Clean Power Plan regulations even though those rules no longer exist, and EPA is replacing them. Harvard Law Professor Richard Lazarus joins Host Steve Curwood to explain how a loss for EPA in this case could limit climate policies across multiple agencies.

Continue Reading at Living On Earth »

Don’t believe those who say ending Roe v Wade will leave society largely intact

May 23, 2022

An op-ed by Laurence Tribe: Now that the dust has begun to settle after the initial explosive news that the US supreme court is poised to overrule the right to abortion and that Justice Samuel Alito’s draft opinion in Dobbs v Jackson Women’s Health Organization represents what a majority of the court initially voted to do, among the most revealing ways to understand the devastation the court appears ready to wreak on America’s long march toward “liberty and justice for all” is to examine the kinds of arguments being made in the opinion’s defense. The argument that such a ruling would simply return a divisive issue to the people had long since been widely dismantled. It certainly wouldn’t be returned to the people most profoundly affected once women were told they may have to remain pregnant despite whatever urgent reasons they might have for seeking a safe and legal abortion. It couldn’t be described as returning the abortion issue to the states, now that the possibility of a nationwide ban that the supreme court might uphold is on the horizon. And to the extent the issue is returned to the states, it would be returned to state legislatures so gerrymandered that they often represent the views of a distinct minority of the people anyway.

Continue Reading at The Guardian »

What the end of Roe signals about the rise of Christian power

May 23, 2022

The leaked draft Supreme Court opinion suggests that Roe v. Wade is about to fall. If the court overturns Roe, the impact will go far beyond abortion rights. It will also signal the dramatic expansion of religious authority into far-flung corners of American life, as conservative Christians impose their moral ideas on the general public. Conservatives have long been explicit in their view that the right to abortion had to be countered to maintain the Christian underpinnings of American society. After the court handed down its decision in 1973, for example, Christianity Today lamented that “the American state no longer supports, in any meaningful sense, the laws of God.” American Catholic bishops similarly spoke of the natural law that abortion violated and immediately mobilized to limit the damage. … So as the legal scholar Laurence H. Tribe later explained in the Harvard Law Review, the court took a step back from the issue. Rather than deciding the precise status of an unviable fetus, it asked itself the question, in Tribe’s words, “Who should make judgments of that sort?” The answer was clear, given the court’s prior rulings. The court should not decide, nor should political players at the state or federal level, nor should religious teachers. An individual woman in consultation with her doctor was the only person charged with making those judgments.

Continue Reading at The Washington Post »

How to Protect Yourself When Seeking an Abortion Learn your legal risks and take control of your digital privacy.

May 23, 2022

The illusion that anti-abortion lawmakers wouldn’t try to criminalize abortion seekers was shattered this year with the introduction of a Louisiana bill that would have allowed prosecutors to bring murder charges against them (the bill was revamped and that section was dropped). Though most abortion restrictions don’t explicitly penalize pregnant people, Dana Sussman, acting executive director of the National Advocates for Pregnant Women, says the organization has documented “over 1,700 cases from 1973 to 2020 that criminalize pregnant people” for a number of reasons, from self-managed abortion to stillbirth to suspected drug use. Prosecutors have also used feticide and child abuse or neglect statutes to charge women who ended their pregnancies. In 2015, Purvi Patel was tried on both those counts in Indiana and sentenced to 20 years in prison after allegedly self-managing her abortion (her conviction was eventually overturned). … Turn off face ID “A court can’t compel you to turn over a password in most circumstances because it’s a testimonial act,” says Alejandra Caraballo, an instructor at Harvard Law School’s Cyberlaw Clinic. But “putting in a fingerprint or a face ID is considered a physical act rather than a testimonial act,” she adds. “The court or law enforcement can compel you” to unlock your phone using either method.

Continue Reading at The Cut »

States pursue extreme restrictions in crafting post-Roe abortion law

May 19, 2022

The day after the stunning leak of a Supreme Court draft opinion overturning Roe v. Wade, Oklahoma Gov. Kevin Stitt (R) signed a ban on abortions in the state for pregnancies past six weeks. He wanted Oklahoma to be “the most pro-life state in the country,” which was in part why the state’s new ban included no exceptions for rape or incest. Within 48 hours of the leak, Republicans in Louisiana advanced a bill that would classify abortion as homicide and allow prosecutors to criminally charge patients, not just abortion providers. Though the bill would ultimately be scrapped, its supporters vowed that they would continue to push for “what’s right.” … The antiabortion movement turned away from punishing abortion patients because the public does not support those measures, said Mary Ziegler, a visiting professor at Harvard Law School who specializes in the history of abortion. According to a recent Monmouth University poll, nearly two-thirds of Americans support keeping abortion legal, either always or with some limitations. An additional 26 percent said it should be illegal with exceptions for rape, incest or to save the life of the mother. Only 8 percent said they thought abortion should always be illegal.

Continue Reading at The Washington Post »

Abortion rights are protected in Massachusetts — or so we thought

May 18, 2022

An op-ed by Nancy Gertner: We were smug. We thought that the right to choose abortion was protected in Massachusetts no matter what the US Supreme Court did. The Supreme Judicial Court, the state’s highest court, said as much. In the 1981 case Moe v. Secretary of Administration and Finance, the SJC held that the right to choose abortion was protected under the Massachusetts Constitution. We represented the plaintiffs, indigent women who needed abortions because pregnancy posed substantial risks to their health and who relied on public funds for their care. You had a right to abortion, the US Supreme Court said, but the federal government didn’t have to pay for it. In a 6-1 decision, with justices selected by Republican and Democratic governors, the SJC disagreed: The Commonwealth had to fund medically necessary abortions, even if the federal government did not. Why? Because the Massachusetts Constitution protected an individual’s right to choose in no uncertain terms. It included the right to be free from government intrusion into the decision “whether to bear or beget a child,” a decision involving “the most intimate of human activities and relationships.” It defined a right to privacy that covered more than abortion. There was a “private realm of family life which the state cannot enter,” as the SJC described in a 1944 case about a parent’s choice of religious training for their children. It covered “the sanctity of individual free choice and self-determination,” as the court described its 1977 case about a citizen’s right to refuse life-prolonging treatment.

Continue Reading at The Boston Globe »

‘Trust isn’t built by just one policy.’ Abortion care rights in the workplace are complicated

May 18, 2022

It’s about to be a lot harder to get an abortion in the United States. For many, it’s already hard. The result is that employers, including large companies, are being called upon to fill the abortion care gap. The likelihood of a Roe v. Wade reversal was the push some needed to extend benefits, with Microsoft and Tesla announcing abortion-related travel reimbursements in recent weeks. But the privacy and legal risks facing people in need of abortions loom large. If people have reason to fear texting friends for abortion resources, will they really want to confide in their company? … “Once you criminalize the activity, it opens up so much more leeway for law enforcement and prosecutors to launch investigations,” said Alejandra Caraballo, clinical instructor at Harvard Law School’s Cyberlaw Clinic. “Especially in states like Louisiana and others where they classify abortion as homicide.”

Continue Reading at Protocol »

Attorneys general and prosecutors scramble to figure out what comes next if Roe falls

May 17, 2022

All 50 states would suddenly have the power to decide when and if abortion should be legal if the U.S. Supreme Court overturns Roe v. Wade, but that won’t just be a question for lawmakers. State courts, attorneys general and even district attorneys would be thrust onto the frontlines of this debate. Who holds those offices will matter. … Former Maine Attorney General James Tierney knows a thing or two about the job. He has been a go-to adviser for state attorneys general and teaches a class on them at Harvard Law School. He says some people even call him the “fifty-first attorney general.” Tierney says attorneys general have immense discretion. They can choose to challenge a restrictive abortion law in court – or defend it. “It’s always important who sits in the attorney general’s office. Always. Not just political party but what they argue, how they argue,” Tierney says. “Does who sits in the AG’s office end the story? And the answer is clearly no.”

Continue Reading at WABE »

States pursue extreme restrictions in crafting post-Roe abortion law

May 17, 2022

The day after the stunning leak of a Supreme Court draft opinion overturning Roe v. Wade, Oklahoma Gov. Kevin Stitt (R) signed a ban on abortions in the state for pregnancies past six weeks. He wanted Oklahoma to be “the most pro-life state in the country,” which was in part why the state’s new ban included no exceptions for rape or incest. Within 48 hours of the leak, Republicans in Louisiana advanced a bill that would classify abortion as homicide and allow prosecutors to criminally charge patients, not just abortion providers. Though the bill would ultimately be scrapped, its supporters vowed that they would continue to push for “what’s right.” … The antiabortion movement turned away from punishing abortion patients because the public does not support those measures, said Mary Ziegler, a visiting professor at Harvard Law School who specializes in the history of abortion. According to a recent Monmouth University poll, nearly two-thirds of Americans support keeping abortion legal, either always or with some limitations. An additional 26 percent said it should be illegal with exceptions for rape, incest or to save the life of the mother. Only 8 percent said they thought abortion should always be illegal.

Continue Reading at The Washington Post »

Why a growing number of Latin American countries are legalizing abortion

May 16, 2022

As Americans contemplate living in a country where Roe versus Wade is overturned, a very different story is playing out in many parts of Latin America. In recent years, countries throughout the region have relaxed abortion restrictions. Alicia Yamin, senior fellow for the Global Health and Rights Project at Harvard Law School, joins Ali Rogin to discuss what’s changed and why.

Continue Reading at PBS »

Public Defenders Are About to Be on the Front Lines for Protecting Abortion Rights

May 16, 2022

With abortion set to become illegal quickly this summer in as many as 26 states should the Supreme Court finalize the leaked decision to overturn Roe v. Wade, the risk of criminalized abortion has been made tangible for many people who would never consider themselves willing to break the law. Post-Roe, the fight for abortion rights will focus on different legal venues, shifting away from the federal courts and back to where most people encounter the law: as it is enforced by police and prosecutors, at the county level. Now public defenders will play a pivotal role, as most of the people who face prosecution for abortion are likely to land in their offices for legal protection. … “Companies that traffic in personal, geolocation, advertising, or other data could become digital crime scenes for eager prosecutors armed with subpoenas,” cautioned Alejandra Caraballo, a clinical instructor at the Harvard Law School Cyberlaw Clinic. Groups like Digital Defense Fund with expertise in reproductive justice are already in place to help people protect their rights and their communications.

Continue Reading at The New Republic »

Post-Roe world: Reality check on the implications of the court’s leaked opinion

May 16, 2022

The New Yorker magazine ran a cover in 1976 showing the view of the country from 9th Avenue. The map by Saul Steinberg showed civilization largely ending at the New Jersey border with a vast wasteland between New York and the Pacific Ocean. It appears that, for some people, not much has changed with that view of America. … Such claims, however, ignore that the basis for the original decision was questioned even by liberals. Harvard Law Professor Laurence Tribe wrote that “one of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.” At least some of the court’s justices clearly hold many of the same doubts over the basis for Roe in the Constitution.

Continue Reading at The Hill »

Overturning Roe Could Lead to Restrictions on Birth Control

May 13, 2022

In the wake of a leaked Supreme Court draft opinion overturning Roe v Wade, a handful of state and local Republican politicians appeared to support proposals restricting access to birth control. In Arkansas and Louisiana, some Republican lawmakers announced their support for bills that would effectively result in immediate bans on certain emergency contraception, including copper intrauterine devices (IUDs) or Plan B, the so-called morning after pill, if the Supreme Court indeed overturns Roe. In Idaho and Michigan, conservative lawmakers and candidates expressed interest in proposals that would directly restrict access to emergency contraceptives. … “It’s absolutely clear that the Supreme Court’s decision—if it does emerge along the lines of the leaked opinion by Justice Alito—would…open the door to restrictions on birth control, same sex marriage, sexual intimacy, and other forms of intimate personal decision-making,” says Laurence Tribe, professor of constitutional law at Harvard University tells TIME.

Continue Reading at Time »

La. Republicans advance abortion bill without homicide charge

May 13, 2022

Louisiana Republicans voted Thursday night to gut a highly controversial law that would have classified abortion as homicide and allowed prosecutors to criminally charge women who undergo the procedure. The measure attracted national attention when it passed out of committee last Wednesday with a 7-to-2 vote, less than 48 hours after the leak of a draft opinion that showed the Supreme Court is potentially poised to overturn Roe v. Wade. … “Pretty quickly you got the feeling that people got together and said, ‘Dude, you can’t say that,’ ” said Mary Ziegler, a visiting professor at Harvard Law School who specializes in abortion. The antiabortion movement’s focus on punishing providers is probably a strategic reaction to public opinion, Ziegler added. “Americans have usually been pretty unhappy about the idea of punishing patients.”

Continue Reading at The Washington Post »

US Justices Are Looking More Like Politicians

May 11, 2022

An op-ed by Noah Feldman: The Supreme Court is unraveling. The leak last week of Justice Samuel Alito’s draft opinion that would overturn the 1973 abortion-rights precedent Roe v. Wade is just part of it. The court began to leak even before the opinion (there were reports in late April that Chief Justice John Roberts was trying to coax Justice Brett Kavanaugh to abandon the anti-Roe majority) as well as after (there were reports that Kavanaugh hadn’t wavered). Huge fences have gone up around the court, blocking access for protesters and everybody else. The justices are also facing protests outside their homes.

Continue Reading at Bloomberg Opinion »

Overturning Roe could have major repercussions for IVF treatments, fertility experts warn

May 11, 2022

News that the Supreme Court is on the cusp of overturning Roe v. Wade is sounding alarms for an unexpected part of the population: people looking to get pregnant and the doctors who are helping them. The conservative justices, according to a draft majority opinion disclosed last week, are preparing to give states the full power to determine abortion policies within their borders. Experts say that could open up the legal terrain for states to interfere with the fertility process known as in vitro fertilization, in which a sperm fertilizes an egg outside the body. … “The chances of a successful IVF cycle aren’t that high, so doctors will often implant multiple embryos to maximize the odds at least one pregnancy comes to term,” said Mary Ziegler, a visiting Harvard Law professor who writes extensively on abortion issues. “Sometimes, to maximize the chances a pregnancy comes to term, some of those pregnancies are terminated. A lot of people in the anti-abortion movement look at that and say that’s abortion.”

Continue Reading at ABC57 »

Draft Opinion Overturning Roe Raises a Question: Are More Precedents Next?

May 10, 2022

As an appeals court judge, Samuel A. Alito Jr. repeatedly drew criticism from his colleagues for disrespecting precedents and established understandings of the law. Fellow judges said, for example, that one of his dissents ignored “our precedent” and another deviated from the axiom that laws must be interpreted “by well-recognized rules.” … Laurence Tribe, a liberal-leaning Harvard Law School professor whom Justice Alito repeatedly cited for a 1973 law review article in which Mr. Tribe criticized the reasoning of Roe v. Wade, denounced Justice Alito’s assertion that the draft opinion raised no doubts about precedents that do not concern abortion. “That’s not how principled adjudication works,” Mr. Tribe wrote on Twitter. “Either you’re being a political hack or your ‘only abortion’ bit is BS.”

Continue Reading at The New York Times »

Women advise young people about the Bad Old Days before Roe v. Wade

May 10, 2022

When the nurse offered to hold her hand, Ginny O’Brien didn’t understand how much she would need it. Then the doctor began the abortion procedure without anesthesia. “It was extraordinarily painful,” the 75-year-old Marblehead woman told a group of college students in Vermont last week. “They’re just ripping the inside of you out without any medication.” Just as vivid is the shame she felt when she was 23, when the doctor with the Eastern European accent shoved her legs together and chided her to use birth control next time. … Mary Ziegler, a visiting professor of constitutional law at Harvard Law School and a historian of the reproductive rights movement, pointed to disparate rates of abortion deaths before Roe. “The rate was disproportionately high among people of color, who tended to have a harder time navigating the hurdles to get a legal abortion, either at home or in another state, and were, therefore, more likely to resort to dangerous methods of illegal abortion that would land them in the hospital,” Ziegler said.

Continue Reading at The Boston Globe »

Where is abortion legal in the world? Canada, other countries allow abortions and these ban them.

May 9, 2022

Dozens of states could immediately restrict or ban abortion if Roe v. Wade is overturned by the Supreme Court, as suggested by a leaked draft opinion penned by Associate Justice Samuel Alito, published by Politico. “If enough states prohibit this, there might be some places where it’s cheaper or easier to travel internationally to Mexico or Canada, in particular, than it is to travel to another state,” said Glenn Cohen, a Harvard Law School professor who specializes in bioethics and the law and authored “Patients with Passports,” among other books.

Continue Reading at USA Today »

Legal Reasoning Can’t Settle Abortion-Rights Fight

May 9, 2022

An op-ed by Noah Feldman: In his draft of a Supreme Court opinion intended to overturn Roe v. Wade, Justice Samuel Alito denounces the landmark 1973 abortion-rights precedent as “egregiously wrong” in its basic reasoning. The decision, he argues, was mistaken when it found a privacy right to abortion in the due process clause of the Constitution. Alito is equally dismissive of the reasoning of the 1992 decision, Casey v. Planned Parenthood, in which the Supreme Court revised the rationale for the right to choose and offered a theory of autonomy as an alternative to Roe’s reliance on privacy.

Continue Reading at Bloomberg Opinion »

If Roe v. Wade is overturned, U.S. jurisprudence may shift to the right for decades to come

May 9, 2022

A leaked draft U.S. Supreme Court opinion overturning Roe v. Wade represents both the culmination of a 40-year conservative campaign to remake the country’s judiciary and a potentially tectonic shift in the enforcement of civil rights. If the invalidation of abortion rights goes ahead, it could open the door to litigation over other previously decided issues predicated on the same legal reasoning as Roe, such as same-sex marriage, legal scholars say. And it could signal how the court’s newly empowered right-wing majority will rule on a host of other major matters, including affirmative action, immigration, climate change, guns and voting rights. … Laurence Tribe, a Harvard Law professor and constitutional expert, drew parallels with conservative-dominated courts in the 1850s and 1890s that promulgated decisions depriving Black Americans of citizenship and allowing for racial segregation. Some of these decisions remained in place for more than 50 years. “We are now in an era where it may take decades to do to this Alito disaster what we did with Dred Scott and Plessy v. Ferguson,” he said. “We may be in for a period of years, maybe decades, where freedom is suppressed in America. And because it will also suppress political rights, voting rights, allow for gerrymandering, we may be witnessing the death throes of freedom and democracy.”

Continue Reading at The Globe and Mail »

Protests Erupt Over SCOTUS Draft Opinion Upending Roe

May 9, 2022

Professor Laurence Tribe comments on draft opinion leak, possible nation-wide abortion ban, and more.

Continue Reading at MSNBC »

The Fate of Abortion After the Supreme Court Leak

May 6, 2022

For nearly fifty years, conservative groups have been laser-focussed on overturning Roe v. Wade, the landmark 1973 decision that legalized abortion. In that time, they’ve made significant inroads, chipping away at access to abortion in a number of states. But now they seem on the cusp of near-total victory. The recent leak of a draft Supreme Court opinion, written by Justice Samuel Alito, indicates that a majority of the Justices seem ready to overturn Roe completely. It would be the biggest reversal of personal rights in the United States in more than a generation, and access to abortion in nearly two dozen states would end overnight. Other rights—from access to contraception to gay marriage—could face serious legal challenges. Our guest host Evan Osnos speaks with the New Yorker contributing writer and Harvard Law School professor Jeannie Suk Gersen about what the draft ruling means for reproductive rights in America, and about just how far this Supreme Court might go in the future. “That is what I see in this opinion: that there is a roadmap for litigants immediately after this case comes down to try to pursue a constitutional right to fetal life,” Gersen says. “A right to fetal life, protected by the Constitution as a fundamental right, could have the effect of making abortion illegal in every state.”

Continue Reading at The New Yorker »

The Death of Roe Is Going to Tear America Apart

May 6, 2022

In his draft opinion overturning Roe v. Wade, Justice Samuel Alito blamed that 1973 abortion decision for sparking “a national controversy that has embittered our political culture for a half century.” He quoted Justice Antonin Scalia: “Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of justices to this court in particular, ever since.” … “If you think it’s polarized now, you haven’t seen anything yet,” said Mary Ziegler, a visiting professor at Harvard Law School and author of the forthcoming book “Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment.”

Continue Reading at The New York Times »

Americans can prove Alito wrong at the ballot box

May 6, 2022

An op-ed by Mary Ziegler: When a draft opinion reversing Roe v. Wade leaked this week, there was a clear disconnect between public opinion and where the Supreme Court seems to be headed. True, polls have long shown that Americans are conflicted about the morality of abortion and generally favor some restrictions on the procedure. But when it comes to criminalizing abortion or reversing Roe, a strong majority is clearly opposed. And yet the conservative court seems poised not just to gut abortion rights but to do so rapidly, in an opinion dripping with disdain for abortion rights and setting the stage for the unraveling of other constitutional protections.

Continue Reading at The Boston Globe »

What happens if Roe v. Wade is overturned? LGBTQ+ legal experts are worried about civil rights.

May 6, 2022

The Supreme Court’s draft opinion leak has James Esseks worried, and not just about abortion access. Esseks, the director of the LGBTQ & HIV Project at the ACLU, ticks off the civil rights laws he fears could be on the chopping block. “This potential majority of five justices seems perfectly willing to jettison 50 years of precedent and a right that has become deeply ingrained in the fabric of American society based on not a whole lot,” he said. … “Roe is based on this idea of substantive due process,” said Alejandra Caraballo, a clinical instructor at the Cyber Law Clinic at Harvard Law School. “Basically all of the LGBTQ rights cases are built on this idea of equal protection and substantive due process.”

Continue Reading at The 19th »

Ruth Bader Ginsburg saw this coming: There’s a fatal flaw in Roe v. Wade

May 6, 2022

An op-ed by Amy Frieder (JD ’22): After affirming and reaffirming the right to have an abortion over nearly a half-century — not just in Roe v. Wade,  but also Akron v. Akron Center for Reproductive Health, Thornburgh v. American College of Obstetricians & Gynecologists and Planned Parenthood v. Casey — the Supreme Court should have found Dobbs v. Jackson Women’s Health Organization, the Mississippi case now before it, an easy call. After all, the right to abortion is considered settled law, as Justices Neil Gorsuch and Brett Kavanaugh said in their confirmation hearings. According to those precedents, the Due Process Clause of the 14th Amendment provides a right to privacy that protects the right to choose whether to have an abortion prior to viability, and the government cannot pose an undue burden on that right.

Continue Reading at Salon »

Why There Are No Women in the Constitution

May 5, 2022

An article by Jill Lepore: Within a matter of months, women in about half of the United States may be breaking the law if they decide to end a pregnancy. This will be, in large part, because Supreme Court Justice Samuel Alito is surprised that there is so little written about abortion in a four-thousand-word document crafted by fifty-five men in 1787. As it happens, there is also nothing at all in that document, which sets out fundamental law, about pregnancy, uteruses, vaginas, fetuses, placentas, menstrual blood, breasts, or breast milk. There is nothing in that document about women at all. Most consequentially, there is nothing in that document—or in the circumstances under which it was written—that suggests its authors imagined women as part of the political community embraced by the phrase “We the People.” There were no women among the delegates to the Constitutional Convention. There were no women among the hundreds of people who participated in ratifying conventions in the states. There were no women judges. There were no women legislators. At the time, women could neither hold office nor run for office, and, except in New Jersey, and then only fleetingly, women could not vote. Legally, most women did not exist as persons.

Continue Reading at The New Yorker »

What an Unprecedented Supreme Court Leak Says About the Future of Abortion—and About Precedent Itself

May 5, 2022

An essay by Jeannie Suk Gersen: The Court Chamber inside the Pantheon-like building of the Supreme Court of the United States is adorned with marble friezes depicting ancient lawgivers, including Hammurabi, Moses, and Confucius. To begin each session of the Court, at ten o’clock in the morning, the marshal strikes a gavel and commands, “All rise!” The audience goes silent and obeys. The nine Justices, in dark robes, then emerge from behind a heavy velvet curtain to take their seats on the elevated mahogany bench, as the marshal announces, “The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!” It is the closest thing we have, in the American civic sphere, to a papal audience.

Continue Reading at The New Yorker »

Once Close Allies, Roberts and Alito Have Taken Divergent Paths

May 5, 2022

There was a time when Justice Samuel A. Alito Jr., the author of the leaked draft opinion on abortion that rocked the nation on Monday night, was Chief Justice John G. Roberts Jr.’s closest ally on the Supreme Court. The two men are both products of the conservative legal movement, and they were named to the court by President George W. Bush within months of each other. Their voting records were initially indistinguishable. Indeed, when the chief justice had a particularly difficult case, he would often assign the majority opinion to Justice Alito. “For their first decade on the court together, the chief clearly generally viewed Justice Alito as a colleague upon whom he could rely to craft the kind of narrowly reasoned opinions for the court necessary to maintain a bare five-justice majority,” said Richard J. Lazarus, a law professor at Harvard. “And the chief rewarded Alito with prime opinion assignments in some of the court’s biggest cases, notwithstanding Alito’s formal status as a junior justice.”

Continue Reading at The New York Times »

America’s Supreme Court faces a crisis of legitimacy

May 5, 2022

Big news from America’s Supreme Court usually arrives in late June, when the most contentious rulings of the year are released. But on May 2nd a legal bombshell was delivered two months early, and in unprecedented fashion. Politico, a news website, published a leaked draft of an opinion overruling Roe v Wade, the precedent that has enshrined a constitutional right to abortion for nearly 50 years. The draft, which the chief justice, John Roberts, later confirmed was genuine, appeared to have the support of five of the nine justices, enough to make it the law of the land. If that majority holds when the ruling is officially released, states would be free to ban abortion altogether. Thirteen have already done so, pending just such a ruling. … What, for instance, if a liberal state such as California or Massachusetts followed Texas’s example and enacted a law intended to get around the Supreme Court’s permissive view of gun rights? If the conservative justices were inconsistent and voided such a law, an outraged Democratic governor might ignore them, spurring a constitutional crisis. Laurence Tribe of Harvard Law School, for one, believes the prospect of government officials “thumbing their noses at the court’s formal judgments” is not “an altogether far-fetched scenario”.

Continue Reading at The Economist »

Abortion Pills Stand to Become the Next Battleground in a Post-Roe America

May 5, 2022

If the Supreme Court overturns Roe v. Wade, the legal and culture wars over abortion that have consumed the United States for decades would increasingly be fought on a new front: abortion pills. Medication abortion — a two-drug combination that can be taken at home or in any location and is authorized for use in the first 10 weeks of pregnancy — has become more and more prevalent and now accounts for more than half of recent abortions in the United States. If the federal guarantee of abortion rights disappears, medication abortion would likely become an even more sought-after method for terminating a pregnancy — and the focus of battles between states that ban abortion and those that continue to allow it. “Given that most abortions are early and medication abortion is harder to trace and already kind of becoming the majority or preferred method, it’s going to be a big deal,” Mary Ziegler, a visiting law professor at Harvard, said. “It’s going to generate a lot of forthcoming legal conflicts because it’s just going to be a way that state borders are going to become less relevant.”

Continue Reading at The New York Times »

Asserting that fetuses have rights, draft opinion could lead to abortion ban even in states like Mass., experts warn

May 5, 2022

The strongly worded legal language used in the draft Supreme Court opinion that appears to overturn nearly 50-year-old abortion-rights protections could provoke conservative efforts to enact a universal, nationwide abortion ban, according to legal and policy analysts on both sides of the political debate. They say the case has already galvanized advocates who want a federal law criminalizing abortion. The Supreme Court, based on the draft opinion, appears set to not only uphold a controversial Mississippi law banning abortions after 15 weeks of pregnancy but also overturn the landmark 1973 Roe v. Wade decision that protected a person’s right to abortion. The court opinion suggests the question over abortion restrictions should be legislated at the state level. … Harvard legal scholar Laurence Tribe wrote on Twitter: “If the Alito opinion savaging [the Roe decision and similar cases] ends up being the opinion of the court, it will unravel many basic rights beyond abortion and will go further than returning the issue to the states: It will enable a GOP Congress to enact a nationwide ban on abortion and contraception.” Tribe added, “Predictable next steps after the Alito opinion becomes law: a nationwide abortion ban, followed by a push to roll back rights to contraception, same-sex marriage, sexual privacy, and the full array of textually un-enumerated rights long taken for granted.”

Continue Reading at The Boston Globe »

Tech Companies Are Not Ready for a Post-Roe Era

May 5, 2022

An article by Alajandra Caraballo: The digital revolution came of age when legal abortion was the default. As a result, Silicon Valley companies have never had to seriously grapple with the criminalization of abortion access in the United States. But tech companies are about to be at the center of the storm surrounding abortion access and reproductive rights. An overnight criminalization of abortion in 23 states, as is now expected, would leave them struggling with issues ranging from services that could expose users to criminal liability for aiding and abetting abortion access to employees demanding relocation to other states.

Continue Reading at Wired »

Funds that help low-income people pay for abortions are seeing a sharp uptick in donations

May 5, 2022

Since the draft of the Supreme Court opinion overturning Roe versus Wade leaked supporters of abortion rights have been organizing protests around the country. Some have also been donating to abortion funds, which provide support to people who can’t afford the procedure. There are at least 90 such funds around the country. Insurance often doesn’t cover the abortions, which are expensive and often cost around $500 to $800 — sometimes more. Many people can’t afford to pay out of pocket. Mary Ziegler, a visiting professor at Harvard Law School, says that’s where abortion funds come in. “There is no federal funding for abortion, the Hyde Amendment prevents that. So funds ensure that people have money for things like the actual abortion procedure to transportation and lodging,” said Zeigler.

Continue Reading at Marketplace »

Louisiana Republicans advance bill that would charge abortion as homicide

May 5, 2022

Republicans in the Louisiana House advanced a bill Wednesday that would classify abortion as homicide and allow prosecutors to criminally charge patients, with supporters citing a draft opinion leaked this week showing the Supreme Court ready to overturn Roe v. Wade. The legislation, which passed through a committee on a 7-to-2 vote, goes one step further than other antiabortion bans that have gained momentum in recent years, which focus on punishing abortion providers and others who help facilitate the procedure. Experts say the bill could also restrict in vitro fertilization and emergency contraception because it would grant constitutional rights to a person “from the moment of fertilization.” … “For legislators in the movement, their agenda is to stop abortion,” said Mary Ziegler, a visiting professor at Harvard Law School specializing in the history of abortion law. “When there is a conflict between punishing pregnant people and stopping abortion, it’s clear what they’re going to do.”

Continue Reading at The Washington Post »

In draft abortion ruling, Democrats see a court at odds with democracy

May 4, 2022

For nearly half a century, Republicans have railed against “unelected judges” making rulings that they claim disenfranchise voters from deciding for themselves what laws should govern hot-button issues. But since the release this week of a draft Supreme Court opinion that would overturn the long-standing constitutional right to abortion, Democrats have been the ones embracing that complaint, flipping the script as the party vents its frustration with elements of the U.S. system that have empowered a minority of the country’s voters to elect lawmakers who have successfully reshaped the high court. … “Through most of U.S. history, there has been a shared stake among elite political actors in preserving the Supreme Court as an institution that is held out as being separate from and above politics,” said Richard H. Fallon Jr., a Harvard Law School professor. He said he sees that tradition eroding. “Certainly at no point in my lifetime,” Fallon said, “has the Supreme Court been more vulnerable than it is right now.”

Continue Reading at The Washington Post »

Where Roe went wrong: A sweeping new abortion right built on a shaky legal foundation

May 4, 2022

Roe vs. Wade, the Supreme Court’s best-known decision of the last 50 years, is also its most endangered precedent. It gave women nationwide the legal right to choose abortion, but the backlash reshaped the country’s politics. The landmark ruling may well be overturned by conservative justices appointed by Republican presidents to do just that. What went wrong with Roe? Why did the court’s effort to resolve the abortion controversy in 1973 lead instead to decades of division? … “The first-trimester/second-trimester dividing line is a big deal,” said Harvard Law School professor Michael Klarman. “It’s why ‘partial-birth’ abortion laws were such a political gold mine for Republicans. Roe created such a broad abortion right that it probably pushed some of the many Americans in the middle of the spectrum on this issue into the opposition.”

Continue Reading at The LA Times »

The Conservatives Aren’t Just Ending Roe—They’re Delighting in It

May 4, 2022

An op-ed by Mary Ziegler: Something fundamental about the Supreme Court has changed in recent months. It is not simply that the Court has a conservative supermajority, although that is true enough. What is really striking is just how emboldened that conservative supermajority is—how willing to take on a number of deeply divisive culture-war issues; how blasé about making major decisions via the Court’s shadow docket; how open to making rapid, profound changes to long-standing precedent. Last night, when Politico released a leaked February draft of an opinion by Justice Samuel Alito that would reverse Roe v. Wade, the landmark decision recognizing the right to choose abortion, the public got its most arresting taste thus far of just what this conservative bloc could do.

Continue Reading at The Atlantic »

Draft opinion could ultimately unravel other rights, legal experts warn

May 4, 2022

The bombshell draft opinion written by Supreme Court Justice Samuel Alito and leaked to Politico shatters a bedrock of modern American law and could culminate a decades-long campaign by conservatives determined to reverse the 1973 ruling that legalized abortion. Legal experts suggest the decision by the court’s conservative majority, which is not yet final, portends a flood of antiabortion laws across the country and could erode federal rights to same-sex marriage and access to contraceptives. … Charles Fried, a constitutional law professor at Harvard and the United States solicitor general under President Ronald Reagan, has long criticized the majority opinion in Roe v. Wade. “There are two stunning weaknesses in Roe: its focus on the right to privacy and its historical survey of abortion practice in the United States,” said Fried in an interview Tuesday. But Fried, who argued against the constitutional right to abortion before the Supreme Court in 1989, said the 1992 ruling in Planned Parenthood of Southeastern Pennsylvania v. Casey gave the Roe ruling a firmer constitutional basis. If Roe was a new house built on a shaky foundation, then Casey was the reinforcement that added support beams.

Continue Reading at The Boston Globe »

The court has shifted on abortion over the past 50 years. I have, too.

May 4, 2022

The explosive leak of a Supreme Court draft opinion suggesting the imminent reversal of Roe v. Wade has proved quite the Rorschach test for a country long divided over this most fundamental of moral issues. The usual combatants have reacted predictably, even though the document is, hello, only a “draft” by Justice Samuel A. Alito Jr. and may or may not receive the predicted approval by five conservative justices. Pity Chief Justice John G. Roberts Jr., who had this unprecedented leak on his watch and has ordered an investigation. … Alito does his best to argue that it is not only conservatives who found the original reasoning in Roe lacking. As cited in the brief, Archibald Cox, who served as solicitor general under Presidents John F. Kennedy and Lyndon B. Johnson, remarked that Roe “read[s] like a set of hospital rules and regulations” that “Neither historian, layman, nor lawyer will be persuaded … are part of … the Constitution.” Harvard constitutional scholar and author Mark Tushnet called Roe a “totally unreasoned judicial opinion.”

Continue Reading at The Washington Post »

Softer language post-leak? Maybe, says Tribe, but ruling will remain an ‘iron fist’

May 4, 2022

The leak of a draft majority opinion reversing Roe v. Wade, the landmark 1973 Supreme Court ruling legalizing abortion, was an unprecedented breach in a process typically shrouded in secrecy and a blow to the nation’s highest court, which in recent years has been plagued by questions about its impartiality from both the left and the right. In a statement released Tuesday, Chief Justice John Roberts confirmed the authenticity of the draft, written by Justice Samuel Alito, but insisted that it was not final. He called the leak a “singular and egregious breach” and said that he has directed the marshal of the court to investigate its source. The Gazette spoke with Laurence H. Tribe, the Carl M. Loeb University Professor and Professor of Constitutional Law, Emeritus, at Harvard Law School, about the leak, how it might have happened, and what it could mean for the court’s reputation and the outcome of the case. The interview was edited for clarity and length.

Continue Reading at The Harvard Gazette »

For Conservative Legal Movement, a Long-Sought Triumph Appears at Hand

May 4, 2022

In May 1987, Attorney General Edwin Meese III traveled to St. Louis and spoke before a group of clergy members opposed to abortion. Denouncing Roe v. Wade, the Supreme Court’s 1973 ruling on abortion rights, he told them that he saw reason to hope that “in our lifetimes” it would be thrown on “the ash heap of legal history.” Thirty-five years later, a leaked draft opinion suggests that the Supreme Court’s conservative majority is poised to overturn Roe, permitting states to outlaw abortion. Liberals may be aghast, but for the conservative legal movement, of which Mr. Meese was a key early figure, a long-sought moment of triumph appears to be at hand. “This will feel like a tremendous vindication for the conservative legal movement,” said Mary Ziegler, a Harvard Law School visiting professor and the author of several books about the anti-abortion movement and legal politics. “The movement goes beyond Roe v. Wade, but overruling it has become the preoccupation for the movement and the test of its success.”

Continue Reading at The New York Times »

Abortion Case Leak Shows That the Supreme Court Is Broken

May 3, 2022

An op-ed by Noah Feldman: The leaked draft of a majority Supreme Court decision by Justice Samuel Alito overturning Roe v. Wade means several things. First, it indicates that in the justices’ private conference, at least five members of the court voted to reverse the 1973 abortion precedent. They aren’t bound by that vote, which they can change up to the day the final opinion is released. Almost all first drafts undergo significant revision based on discussion and debate among the justices. So the second point to make is that Roe isn’t yet overturned, though it very likely will be.

Continue Reading at Bloomberg Opinion »

Former U.S. District Court judge on what the SCOTUS leak means for abortion law

May 4, 2022

Abortion may soon become illegal in some states. Politico on Monday night leaked a draft opinion penned by Supreme Court Justice Samuel Alito suggesting the court will overturn Roe v. Wade, the 1973 case legalizing abortion nationwide, and Planned Parenthood v. Casey, which upheld abortion in 1992. The rare Supreme Court leak regards Dobbs v. Jackson Women’s Health Organization, a case surrounding a restrictive Mississippi abortion law. Judge Nancy Gertner, a retired judge for the U.S. District Court in Massachusetts, said the news caught her off guard. “I was surprised by the venom of the decision,” Gertner said on Boston Public Radio. If the official ruling holds true to the arguments in the leaked document, it could have far-reaching effects beyond abortion. Gertner said she is worried about the broader legal implications, including what it means for birth control, interracial marriage and same-sex marriage. “The implications of that are enormous,” Gertner said. “The reasoning really casts doubt on 50 years of constitutional law.”

Continue Reading at WGBH »

The new Supreme Court’s iron fist

May 4, 2022

An op-ed by Laurence Tribe: Nobody will soon forget where they were when they got Monday’s news: The right of women to control their own bodies and to decide whether and when to have a child will no longer belong to them if the leaked Supreme Court opinion overturning Roe v. Wade becomes law this summer. But there is more. Reading the draft, written by Justice Samuel Alito, you quickly learn that all the rights people have long taken for granted — like the rights to decide whom to marry, whether to use birth control, with whom to have sex, how to raise your children, and an endless list of other freedoms — will no longer be protected unless you can point to language in the Constitution expressly guaranteeing those rights, or convince five Supreme Court justices that they are “deeply rooted in this nation’s history and tradition” and “implicit in the concept of ordered liberty.”

Continue Reading at The Boston Globe »

What a Supreme Court ruling ending Roe v. Wade would mean for reproductive rights

May 4, 2022

A day after a Supreme Court document on abortion became public we look at the legal and political implications. Marcia Coyle, chief Washington correspondent for the National Law Journal, and Mary Ziegler, a Florida State University law professor and author of “Abortion and the Law in America,” join Judy Woodruff to discuss.

Continue Reading at PBS »

Leaked Document Shows SCOTUS Likely to Overrule Roe; True Crime and Politics in New Jersey; District 18 CM Amanda Farías; Another Amazon Union Vote

May 4, 2022

Coming up on today’s show: Politico published a leaked document that appears to be written by Supreme Court Justice Alito, and shows the court will vote to overturn Roe v. Wade. Mary Ziegler, professor at Florida State University College of Law, currently a visiting professor of constitutional law at Harvard and the author of Abortion and the Law in America: A Legal History, Roe v. Wade to the Present (Cambridge University Press, 2020), talks about what this means and what comes next for abortion rights in America.

Continue Reading at WNYC »

Stakes raised in midterm elections with Roe v. Wade poised to be overturned

May 4, 2022

A leaked draft opinion suggests the US Supreme Court could be poised to overturn the landmark 1973 Roe v. Wade case that legalized abortion nationwide, according to a Politico report released Monday. A decision to overrule Roe would lead to abortion bans in roughly half the states and could have huge ramifications for this year’s elections. But it’s unclear if the draft represents the court’s final word on the matter — opinions often change in ways big and small in the drafting process. … “This will feel like a tremendous vindication for the conservative legal movement,” said Mary Ziegler, a Harvard Law School visiting professor and the author of several books about the anti-abortion movement and legal politics. “The movement goes beyond Roe v. Wade, but overruling it has become the preoccupation for the movement and the test of its success.”

Continue Reading at The Boston Globe »

Where Roe went wrong: A sweeping new abortion right built on a shaky legal foundation

May 3, 2022

Roe vs. Wade, the Supreme Court’s best-known decision of the past 50 years, is also its most endangered precedent. It gave women a nationwide legal right to choose abortion, but the backlash reshaped the nation’s politics. The landmark ruling now faces being overturned by conservative justices appointed by Republican presidents to do just that. What went wrong with Roe? Why did the court’s effort to resolve the abortion controversy in 1973 lead instead to decades of division? … “The first-trimester/second-trimester dividing line is a big deal,” said Harvard Law School professor Michael Klarman. “It’s why ‘partial-birth’ abortion laws were such a political gold mine for Republicans. Roe created such a broad abortion right that it probably pushed some of the many Americans in the middle of the spectrum on this issue into the opposition.”

Continue Reading at The LA Times »

With Roe endangered, Democrats divide on saying the word ‘abortion’

May 3, 2022

After Texas passed its restrictive abortion law last fall, Democrats started talking more about abortion than they had in decades. House Democrats coalesced around a bill to turn into law the Supreme Court’s decision legalizing most abortions, Roe v. Wade, voicing their support for the landmark precedent in tweets and public statements. A few days later, three congresswomen shared their abortion stories on the House floor. And when he delivered his State of the Union address in March, President Biden became the first Democratic president since Roe to use that platform to call for action on abortion rights. … When they addressed abortion in other statements and speeches in the 1990s, Democrats generally tried to appeal to the largest possible cross-section of voters, said Mary Ziegler, a professor at Florida State University’s College of Law and Harvard Law School who specializes in the history of abortion. Democratic leaders at the time emphasized that being “pro-choice” was not being “pro-abortion.” As he campaigned for president in 1992, Bill Clinton said abortion should be “safe, legal and rare,” coining a phrase that defined the party’s position on abortion for years.

Continue Reading at The Washington Post »

Legal experts express shock at rare Supreme Court leak on major abortion rights case: ‘Highly disturbing’

May 3, 2022

Legal experts expressed shock and concern on Monday evening after Politico released what it says is a draft opinion on a major abortion rights case that’s still pending, representing a rare breach of Supreme Court protocol, and a sign that the justices are ready to undo abortion rights. “The fact that it leaked is, to me, the most surprising thing,” I. Glenn Cohen, a professor at Harvard Law School, told Insider, adding that it’s “very unusual.”

Continue Reading at Business Insider »

Harvard Law professor Laurence Tribe warns Supreme Court draft opinion on Roe would unravel other rights

May 3, 2022

Harvard Law School professor Laurence Tribe is warning Tuesday that if the draft opinion by Supreme Court Justice Samuel Alito becomes law more than the right to a safe abortion is at risk: Same sex marriage, access to contraception, and other “unenumerated” rights could also come to an end. Tribe raised the possibility of wider implications the nation could face in the wake of the unprecedented leak of the draft opinion purportedly written by Alito on the court’s pending decision on a Mississippi state law banning abortion after 15 weeks of pregnancy. The Mississippi law does not have any exceptions victims of rape, incest or if the pregnancy threatens the life of the mother. … “Predictable next steps after the Alito opinion becomes law: a nationwide abortion ban, followed by a push to roll back rights to contraception, same-sex marriage, sexual privacy, and the full array of textually unenumerated rights long taken for granted,’’ Tribe wrote.

Continue Reading at The Boston Globe »

Harvard Law professor says leaked SCOTUS draft opinion on Roe v. Wade looks legitimate, but opinions can change

May 3, 2022

A draft Supreme Court opinion obtained by Politico and published online Monday night indicates the justices are on the verge of overturning Roe v. Wade, the landmark 1973 decision that made abortion legal nationwide, but a Harvard constitutional law scholar said opinions can change, and this document does not necessarily represent the court’s final ruling. “A draft opinion is only that: It’s a draft,” Nikolas Bowie, an assistant professor at Harvard Law School who teaches courses on constitutional law, told the Globe in a phone interview late Monday night. “Odds are this is not the latest opinion.” “Justices are all free to change their mind at any point before the final opinion is actually issued,” he added.

Continue Reading at The Boston Globe »

Supreme Court leak overturning abortion rights has Democrats concerned that same-sex marriage and civil rights could be next

May 3, 2022

Democratic lawmakers and constitutional scholars say the leaked Supreme Court decision that appears to overturn abortion rights could lead to overturning the right to same-sex marriage and other civil rights. Part of the opinion, written by Justice Samuel Alito, explicitly references Obergefell v. Hodges, the landmark decision to legalize same-sex marriage, and Lawrence v. Texas, a decision that legalized sodomy. … Legal scholar Laurence Tribe echoed Ocasio-Cortez’s statement noting “predictable next steps” if the leaked opinion officially becomes law. “A nationwide abortion ban, followed by a push to roll back rights to contraception, same-sex marriage, sexual privacy, and the full array of textually unenumerated rights long taken for granted,” Tribe tweeted.

Continue Reading at Business Insider »

‘Appalling’ and ‘Unforgivable Sin’: Leaked SCOTUS Draft Overturning ‘Roe’ Shocks Legal Community

May 3, 2022

Social media was quickly afire Monday night after an unprecedented leak showed the U.S. Supreme Court has circulated a draft opinion that would overturn two key abortion rights precedents. The draft acquired by Politico was written by Justice Samuel Alito, and would overturn Roe v. Wade and Planned Parenthood v. Casey. The decision would cap off Mississippi’s defense of its ban on abortions after 15 weeks of pregnancy, a case that eventually morphed into a call to overturn the two landmark decisions. … >> Laurence Tribe, Harvard Law School: “If the Alito opinion savaging Roe and Casey ends up being the Opinion of the Court, it will unravel many basic rights beyond abortion and will go further than returning the issue to the states: It will enable a GOP Congress to enact a nationwide ban on abortion and contraception.” (Twitter)

Continue Reading at Law.com »