By Richard H. Levey
Nonprofit leaders on both sides of the abortion issue scrambled to comment after Politico, a politics news site, released what it claimed was “an initial draft majority opinion written by Justice Samuel Alito” in which the Supreme Court of the United States will strike down Roe v. Wade. The 1973 Supreme Court decision protected the right to abortion access without excessive government restriction.
If the draft holds as leaked, it might have ramifications beyond reproductive rights. The leaked document has an ominous overtone for the Lesbian, Gay, Bisexual, Transgender and Queer (LGBTQ+) communities. Alito’s argument was based in part in the idea that the first section of the 14th Amendment, which prohibits states from making or enforcing laws that abridge privileges or immunities of U.S. citizens, did not apply to Roe v. Wade.
According to the draft of the decision in Dobbs v. Jackson Women’s Health Organization published by Politico, Alito wrote, “We hold that Roe and [the 1992 Supreme Court decision in Planned Parenthood v. Casey, which upheld Roe] must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment. … The right to abortion does not fall within this category.”
The Politico article noted that both the language of the decision and even the vote tally might change between an initial draft and final release, which is anticipated as being within the next two months.
Politico released its story late on Monday, May 2, and as of early Tuesday morning several organizations on both sides of the issue had released statements.
“This leaked opinion is horrifying and unprecedented, and it confirms our worst fears: that the Supreme Court is prepared to end the constitutional right to abortion by overturning Roe v. Wade,” Planned Parenthood Federation of America President and CEO Alexis McGill Johnson said via a statement.
“While we have seen the writing on the wall for decades, it is no less devastating, and comes just as anti-abortion rights groups unveil their ultimate plan to ban abortion nationwide,” McGill Johnson’s statement continued. “Understand that Planned Parenthood and our partners have been preparing for every possible outcome in this case and are built for the fight. Planned Parenthood health centers remain open, abortion is currently still legal, and we will continue to fight like hell to protect the right to access safe, legal abortion.”
NARAL Pro-Choice America President Mini Timmaraju said via a statement: “This is the most ominous and alarming sign yet that our nation’s highest court is poised to overturn Roe v. Wade, ending the constitutional right to abortion as we know it and ripping away our freedom to decide if, when, and how to raise our families.” Timmaraju’s statement continued: “While this is a draft opinion and abortion is still legal, we need to brace for a future where more and more people are punished and criminalized for seeking and providing abortion care. Now more than ever, we must support those working to provide abortion care and elect champions who will relentlessly fight for reproductive freedom and take bold action to safeguard abortion rights.”
NARAL’s statement went on to note that if Roe is, in fact, overturned, 28 states would likely take action to prohibit abortion access, with 13 of those having automatic bans that would go into effect immediately if Roe is overturned.
Nancy Northup, President and CEO of the Center for Reproductive Rights took an initially cautious view of the news, given the leaked nature of the decision.
“We don’t know if the document as reported by Politico is legitimate, and we don’t know if it represents the views of a majority of the Supreme Court,” Northup said via a statement. “What we do know is that if the Supreme Court overturns Roe v. Wade it will be an unjustified, unprecedented stripping away of a guaranteed right that has been in place for nearly five decades. It would represent the most damaging setback to the rights of women in the history of our country.”
Northup said via the statement: “It’s important to remember that the court has not yet issued a decision and abortion remains legal in the United States.”
Similarly, Jamila Perritt, President and CEO of Physicians for Reproductive Health observed in a statement, “While the opinion is not final, nor does it include the other thoughts and opinions of the remaining Justices, it affirms what we have known to be true: a majority of the Supreme Court of the United States intends to take away the constitutional right to abortion without regard to what our communities need and in spite of the majority of our friends, family members, and neighbors supporting access to this is essential health care.”
Perritt continued, “Providers in most places can continue providing abortion care for their communities, but it doesn’t change the reality of this moment and how painful this is. We are reeling with shock and disappointment. But at the forefront of our minds tonight are the people and communities we care for. We know that regardless of what the Supreme Court decides, people will continue to need care. We will continue to support each other, show up for one another, and care for our communities. Because that’s what we know how to do best.”
But for the most part, abortion rights advocates within nonprofit organizations gave full voice to their opinions. “The draft majority U.S. Supreme Court opinion in Dobbs v. Jackson Women’s Health Organization that was leaked this evening is despicable and dangerous, and if the Court’s final majority opinion mirrors this one, represents several steps backwards for our nation,” National Institute for Reproductive Health and NIRH Action Fund President Andrea Miller said via a statement.
“This draft opinion shows that a majority of justices are willing to place anti-abortion zealotry and ideological fervor above the health, well-being, and bodily autonomy of people across this country,” Miller continued.
In response to reports of the leaked draft, Leng Leng Chancey, the executive director of 9to5, National Association of Working Women, issued a statement. “The ability to make decisions about when and whether to have children is a fundamental human right, denying that right has far-reaching implications. If the U.S. Supreme Court overturns Roe, women’s health and economic security will suffer. Reducing access to abortion will reduce women’s participation in the workforce, eroding economic security for many. Restricting access to abortion also will endanger women’s health and lives.”
On the other side of the issue, representatives from at least one nonprofit took a similar wait-and-see approach to that of Northup. In an unattributed statement on its website, National Right to Life posted: “In response to the Politico article claiming to have a copy of the initial draft of the Supreme Court decision in Dobbs v. Jackson, National Right to Life agrees with the statement of Mississippi Attorney General Lynn Fitch who said, ‘We will let the Supreme Court speak for itself and wait for the Court’s official opinion.’”
Not all abortion opponents were as circumspect.
“Americans of all ages, backgrounds, and beliefs recognize the injustice and tragedy of abortion violence,” said Catherine Glenn Foster, President and CEO of Americans United For Life via a statement. “We stand alongside all Americans who have waited so hopefully and for so long for the Supreme Court to reverse Roe, to set America on the path to abortion abolition, and to restore justice to our nation. Today is a day for courage and hope.”
“The Supreme Court wishes to return the issue of abortion to the American people, and for that reason this draft opinion language is to be applauded,” added Americans United For Life Chief Legal Officer and General Counsel Steven H. Aden via a statement. “It is outrageous that this draft language was leaked, presumably by pro-abortion staffers within the Court. It is a cynical and naked attempt to pressure justices to alter course in Dobbs and to perpetuate abortion violence. The Court should maintain the moral high ground, stick to the clear and courageous language of this draft opinion, and not allow itself to be ruled by the expectations of pro-abortion activists or proxy media allies.”
As was the case with some pro-abortion rights organizations, leaders of several well-known nonprofits on the other side of the issue had not weighed in as of early Tuesday morning. There was nothing reflecting the leaked draft on either the pro-life Family Research Council site or that of Heartbeat International.
Politico did not reveal the source of the leak, save for saying it came from “a person familiar with the court’s proceedings in the [Dobbs v. Jackson Women’s Health Organization] case along with other details supporting the authenticity of the document.” There is no indication that the document came from a pro-abortion staffer within the Court as Aden suggested. But the leak does represent a significant breach of professional protocol. As of early Tuesday, the American Bar Association had not issued a comment about the leak.
The fear is Alito’s argument could be applied to Supreme Court rulings such as 2015’s Obergefell v. Hodges, which guaranteed the fundamental right for same-sex couples to marry, as well as 2003’s Lawrence v. Texas, which held that criminal punishment for sodomy was unconstitutional. In both cases, the 14th Amendment was cited as a reason for protecting the civil liberties that had been challenged.
The Human Rights Campaign was among the first of LGBTQ+ advocacy groups to post a reaction to the prospective ruling.
“Many are wondering what this decision means for more recent victories won in the courts for LGBTQ+ people,” Sarah Warbelow, Legal Director for the Human Rights Campaign said in a statement. “I understand that feeling. I feel it too. If Roe is overturned, there is no immediate impact on any other case decided by the Supreme Court including Lawrence and Obergefell. But it encourages state lawmakers pandering to the base to test the limits of court recognized LGBTQ+ equality.
“What we need now is outrage, anger, and action for those among our community who are about to see the most destructive attack on our civil rights in a generation,” Warbelow continued. “We will fight back.”