The leaked U.S. Supreme Court document that shows a draft ruling to overturn the landmark Roe v. Wade decision is raising many questions.
The Roe decision legalized abortion in the United States nearly 50 years ago. The language in this draft would overturn it, moving whether to legalize or criminalize abortion to the states. More than 20 states have laws that could restrict or ban abortion soon after the Supreme Court overturns Roe, according to the Guttmacher Institute.
Lisa Ikemoto, a Martin Luther King Jr. professor at UC Davis School of Law, specializes in reproductive rights and health care disparities. She joined CapRadio’s Randol White to help us understand the opinion that's laid out in the document and how it might play out from here.
What stands out most to you about how Justice Samuel Alito, who wrote this opinion, presented his rationale?
I think a number of things. It's really striking that the opinion rarely mentions or discusses women or even pregnancy. It mentions the term fetal life, for example, or unborn child. It certainly shifts the focus from the person who's carrying the pregnancy to this, you know, reframed notion of fetal life as the most important thing that's at stake.
You've been following the case before the court leading to this draft opinion. Is this what you expected?
It's a draft opinion, so we can't say for sure what's going to happen. But the current lineup on the vote is what I expected after hearing the arguments in late fall.
What's the likelihood that it could change? And by how much?
I don't know. My guess would be that if it changes, it changes by one vote. So apparently, Chief Justice [John] Roberts has indicated that he will vote to uphold the Mississippi law but without overruling Roe versus Wade, and I think it's possible that he'll persuade one justice to join him on that.
Justice Alito's draft opinion states that the argument should only be applied to the issue of abortion. But is that possible?
I think it's a very difficult line to draw. You can see a little bit of the struggle that is in this draft opinion. The hard thing is that there are a whole bundle of rights that fall under the rubric of the right to privacy. And as the opinion says over and over, the Constitution doesn't have any language that protects a right of privacy. Yet the Supreme Court has over the decades been willing to develop this body of law that we now know as substantive due process. So abortion is just one of those cases. And the court then has to figure out how do you distinguish cases like Roe and Casey from rights with respect to parentage, marriage, sexual privacy, all the other kinds of very intimate kind of decision making rights that we have?
California state Senator Scott Wiener says in a social media post “Justice Alito's draft opinion also advocated for erasure and criminalization of LGBTQ people, overturning marriage equality and reinstating anti-sodomy laws.” What do you make of the senator's interpretation of Alito's opinion and its potential ramifications?
I don't know if it actually advocates for that, but I think, you know, what I fear is that it is possible that it will open the door to challenges that to the right of privacy in its current scope that will erase protections for same sex relationships, for gender identity, for sexual privacy for some people, but not for others. All those achievements we've made in the past few years.
How might and overturning of Roe impact states like California where abortions are available?
I think it does make a difference. California, I think, is actually in a good place in terms of trying to expand access not only for people who live within California, but for people who will have to travel to California. It means that California will position itself firmly on the side of a full spectrum of civil rights for all people, and will hopefully take the lead on that in a way that it hasn't necessarily had to before.
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