Channel the courage of O’Connor, Souter and Kennedy to rethink overturning Roe

A five-member majority of the Supreme Court has reportedly voted to overturn Roe v. Wade and eliminate the constitutional right to abortion, according to Politico, which obtained a leaked draft opinion. This is a fundamental right that has been recognized and repeatedly reaffirmed by the court since 1973.  We can only hope that this announcement of Roe’s demise is premature because the consequences could not be more devastating. 

1) Overturning Roe would cause “profound and unnecessary damage”

As now-retired Republican-appointed Justices Sandra Day O’Connor, Anthony Kennedy and David Souter warned us in an opinion 30 years ago, overturning Roe would cause “profound and unnecessary damage to the court’s legitimacy, and to the nation’s commitment to the rule of law.”  That would be even more true today when a mere change in court jurists would be responsible for this rewriting of the Constitution. Worse still, the jurist change was gerrymandered by Sen. Mitch McConnell (R-Ky.) when he was Senate majority leader. McConnell refused to allow the Senate to consider President Barack Obama’s Supreme Court nominee, Merrick Garland, in 2016 on the ground that the seat should be filled by the winner of the upcoming presidential election, and then in a complete reversal refused to allow the American people to vote in 2020 before replacing Justice Ruth Bader Ginsburg on the eve of that presidential election.

Former President Donald Trump made clear he would pack the court with justices who would reject Roe. The three justices he selected —Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett —are central to the putative five-justice majority who back this draft opinion. 

The credibility of the court would also be undermined because all three of Trump’s selections, and Justice Samuel Alito, the author of the draft opinion overruling Roe, testified at their confirmation hearings that Roe was “settled law,” or “a fundamental part of our legal system,” or “presumptively controlling.”  Yet, Alito’s draft now says Roe was “egregiously wrong from the start” and its “reasoning was exceptionally weak.”  If so, it is inconceivable that these experienced jurists had not reached that conclusion when they gave their confirmation testimony under oath. It is hard to square their failure to reveal that to the Senate with Alito’s statement in his draft that it is time to “return the issue of abortion to the people’s representatives.”  Shouldn’t the “people’s representatives” in the Senate have been allowed to take it into account in deciding whether to confirm them as guardians of our constitutional rights, including abortion?

2) The effect of overruling Roe on women cannot be overstated

The constitutional right to abortion is central to women’s autonomy, dignity and ability to define their existence, determine their future, achieve their dreams and aspirations, as well as be equal participants in our society. Continuing to recognize women’s rights is critical for men as well.

Alito’s draft opinion maintains that the question of abortion would be left to each state to decide. But don’t be misled into assuming that if you live in a blue state, or can afford to travel to one, abortion would continue to be available as before.  The 14th Amendment requires that no state shall “deprive any person of life, liberty, or property, without due process of law.” Roe not only recognized the right to abortion, but also held that the “unborn” are not “persons” within the meaning of the Constitution.  Alito’s draft goes out of its way to challenge that conclusion. He writes that abortion “is fundamentally different” from other constitutional rights “because it destroys … what the [Mississippi] law now before us describes as an ‘unborn human being.’” He quotes a 19th-century state court ruling that “to many purposes, in reference to civil rights, an infant in ventre sa mere is regarded as a person in being.” He asserts that the 19th century laws barring abortion on which he relies to eliminate the right to abortion were “spurred by a sincere belief that abortion kills a human being” (even though he has no way of knowing that). As Roe explained, if “the unborn” are considered to be persons, “the fetus’ right to life would then be guaranteed specifically by the [14th] Amendment,” and any right to abortion anywhere would “collapse.”  Several states have already enacted laws asserting that life begins at fertilization, in the expectation that Roe will be overruled. 

3) The draft opinion undermines privacy from the government as we know it

Alito’s draft challenges any assumption that we will continue to enjoy our other fundamental constitutional rights to privacy and choice in our most important personal decisions on matters affecting marriage, family relationships, child-rearing, education, procreation, intimate relationships, private consensual sexual conduct, contraception and medical treatment, free of unwarranted government intrusion. His very first point is that “the Constitution makes no reference to abortion.” Well, it also “makes no reference to” any of these other rights. States have tried to regulate every one of them. And many of those efforts have failed only because, in a long line of decisions going back to the 19th century, the Supreme Court has, as in Roe, made clear that the concept of liberty guaranteed by the 14th Amendment includes the same rights of privacy, individual dignity, physical autonomy, bodily integrity and the freedom to make intimate choices that define personal identity and beliefs, on which the right to abortion also rests, even though they are not expressly mentioned in the Constitution. 

Take the right to same-sex marriage recognized by the court six years ago in its landmark 5-to-4 decision in Obergefell v. Hodges. The three current Republican-appointed justices who joined the court before Trump was president dissented, and argued there was no such right, because, in the words of Chief Justice John Roberts, “The Constitution itself says nothing about marriage, and the Framers thereby entrusted the States with ‘[t]he whole subject of the domestic relations of husband and wife.’” Alito agreed that the Constitution does not create “a right to same-sex marriage.” And Justice Clarence Thomas chastised the majority for adopting “the dangerous fiction of treating the Due Process Clause [of the 14th Amendment] as a font of substantive rights.” How can we assume that the three Trump-appointed Justices will not take that same view now if they overrule Roe?  

The last time there was a major attempt to overrule Roe was in a 1992 case called Planned Parenthood v. Casey. At the internal court conference after the case was argued, five justices voted to overrule Roe, as has apparently happened again now. But two Republican-appointed justices who were not part of that majority, O’Connor, the first woman on the court, and Souter, appealed to “the basic sense of decency and fairness” of Kennedy, a very conservative justice who was one of the five. By the summer of 1992, Kennedy had the courage to change his position and join O’Connor and Souter in a very rare three-person opinion that not only upheld Roe, 5-to-4 but also clearly and definitively batted down the arguments for overruling it. They explained that even though some of them “as individuals find abortion offensive to [their] most basic principles of morality,” their “obligation [was] to define the liberty of all, not to mandate our own moral code.” They recognized that “freedom from unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether to bear” a child, is “central to personal dignity and autonomy,” to “liberty protected by the [14th] Amendment,” and to women participating “equally in the economic and social life of the Nation.”

Later, in 2015, Kennedy wrote the opinion for the court’s 5-to-4 majority that found there was a constitutional right to same-sex marriage. Building on his opinion in Casey, Kennedy categorically and persuasively rejected the argument that our constitutional right to “liberty” should be cabined to exclude rights not expressly mentioned in the Constitution. Kennedy emphasized, “The generations that wrote and ratified the Bill of Rights and the [14th] Amendment did not presume to know the extent of freedom in all its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning,” adding that “the identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution.” 

It is not too late for one or more of the Alito five to follow Kennedy’s path today. Who among them will have Kennedy’s courage and his wisdom? 

To paraphrase Kennedy, while many who disagree with the right to abortion and the other constitutional rights not expressly mentioned in that document may have arrived at that conclusion based on sincere and honorable religious and philosophical premises, when that opposition becomes enacted into law and public policy, the necessary consequence is to put the imprimatur of the state itself on an outcome that demeans and stigmatizes those whose liberty is denied. The Supreme Court, which is supposed to be the guardian of our constitutional rights, should not now reinterpret the Constitution in a manner that deprives us of fundamental and long-recognized liberties, and thereby demean and stigmatize so many whose liberties are denied. 

Michael J. Dell is a New York lawyer who has represented women who seek to protect the constitutional right to an abortion, including in amicus briefs in the last two major Supreme Court abortion cases.