First, this isn’t a Supreme Court decision yet, only a draft, but it probably reflects what the court’s going to do and is pretty close to the eventual decision’s final form.
Republicans are already angrily accusing Democrats of leaking the draft in order to “attack the court” and “intimidate the justices,” even before anyone knows who leaked it, how or why it was leaked, and with what motivation.
This story will dominate the news. Legal scholars and experts will be weigh in very quickly. Pundits will make all sorts of predictions.
The draft (read it here) is 98 pages long (the actual opinion part is 67 pages; the rest is appendices). The official decision, when issued, will be much longer; the draft doesn’t include dissents or concurrences, and other justices are certain to write at length on the matter. When finally issued, it may run hundreds of pages.
Now my thoughts, but first disclaimers: I’ve been a lawyer for half a century and know how to read judicial opinions. I’ve read Roe v. Wade and Casey, and Mississippi’s brief in this case. Before writing this article, I scanned all 98 pages of the Alito draft, reading some parts of it (I knew what I was looking for), and think I have a pretty good picture of what’s in it. Caveats: I’m not a constitutional law specialist or a lawyer who works with abortion law; this issue is in my peripheral field of view, not one I focus on. Plenty of legal scholars and legal commentators are on top of this subject far better than me, and we’ll be hearing from them in coming days.
What it does:
1. Eliminates the constitutional right to abortion.
2. Lets state legislatures regulate or prohibit abortion.
That’s about it. It doesn’t do a whole raft of things:
3. It doesn’t give the unborn constitutional rights.
4. It doesn’t invalidate existing state constitutional provisions or statutes legalizing abortion.
5. It doesn’t suggest those provisions or statutes are unconstitutional.
6. It doesn’t let states ban same-sex marriage, contraceptives, or gay sex, and suggests the court won’t revisit those issues.
7. It doesn’t suggest state legislatures can regulate or ban abortion beyond their own borders.
8. It doesn’t suggest state legislatures can criminalize miscarriages.
9. It doesn’t say states can empower private citizens to enforce abortion bans through private lawsuits.
10. It doesn’t explicitly bar Congress from legalizing abortion everywhere.
On that latter point, the closing paragraph of the draft opinion says: “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”
Note this doesn’t specify whether the “people and their elected representatives” refers to state legislatures or Congress, both of which fit that description. This wording appears to be careful and deliberate. You can read it various ways, e.g. the justices don’t agree on whether Congress should be able to override state abortion laws, or they’ve decided to leave that issue for another day and another decision. It actually wouldn’t take much to do that; the Democrats are only 1 or 2 senators away from abolishing the filibuster, and with the filibuster gone, abortion legalization would sail through both Houses and be signed by Biden.
This will give abortion opponents a “states’ rights” avenue to banning or restricting abortion, but abortion supporters will still have legal abortion in states that allow it. The court won’t be able to wash its hands of the issue, because this opinion leaves many questions unanswered. State legislatures will have authority they didn’t have under Roe v. Wade, but to do what? For example, can they prohibit their residents from getting out-of-state abortions? Some will try (they’re already trying; see story here). But who is a “resident”? and who decides where a person resides? The person herself, or a state bureaucrat?
I’ve always thought overruling Roe v. Wade would open a can of worms. That’s probably the safest prediction to make. If we learned anything in the past, before Roe v. Wade, it’s that laws don’t prevent abortions; people who can’t get legal abortions will get illegal abortions. And the fights in legislatures over abortion laws will be never-ending.