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May 3, 2022

MSU Law expert weighs in on Roe v. Wade draft opinion/leak

"Ask the Expert" articles provide information and insights from MSU scientists, researchers and scholars about national and global issues, complex research and general-interest subjects based on their areas of academic expertise and study. They may feature historical information, background, research findings, or offer tips.


Michigan State University Law Professor Mae Kuykendall answers questions about what it means if Roe v. Wade is overturned and the leaked draft opinion. She recently co-authored an essay, Uprooting Roe, that was published in the Houston Law Review. 


What will it mean if Roe v Wade is overturned?  


The implication for American politics and for women is seismic. We are in uncharted territory. The Supreme Court is now deeply radical and reactionary, in the basic sense of that term. The Supreme Court's legitimacy is at risk.


What are the short- and long-term impacts? 


Again, this is uncharted territory. States have passed abortion bans with no exception for rape or incest. Childbirth has a mortality rate associated with it and, if done in a hospital, is extremely expensive. This is a form of what is called in other contexts an “unfunded mandate.” It also has a significantly worse impact on Black women, who die in childbirth at a disproportionate rate. The moment the Supreme Court issues its holding (with its “mandate”), draconian state laws will come into effect. Women will die. One does not yet know what women will do to organize and make access to reproductive health care available.


Numerous recent articles have been written about ongoing secret meetings by Republicans in the U.S. Congress to pass a national ban if they gain sufficient control of Congress and the executive branch. The efforts by some states to become “safe havens for reproductive health care” are targets. The assumption that women can travel to liberal states is not something to count on. Further, there will be efforts to criminalize leaving a state for an abortion and returning. We are entering a new era in which all assumptions about women’s status as full citizens, and other assumptions about liberty of all to travel and to associate freely, are up for grabs. The Texas bounty law is a glimpse of a future with heavily restricted rights for pregnant women and their support network.


What document was leaked? 


The document is a draft opinion by Justice Alito in the Mississippi case, Dobbs v Jackson Women’s Health Organization The odds are he is negotiating with other justices who voted with him about specific language. The opinion is quite radical as his starting point, but I do not know who in the radical Republican majority will want to soften it.


Does this assure that Roe v Wade will be overturned? 


It has been clear since the Republican Party began putting justices on the Supreme Court pursuant to an “overrule Roe” litmus test that Roe v Wade was going to be overruled. With the three they gained by refusing to give hearings to Merrick Garland and then rushing Amy Coney Barrett through at the last minute, the end was assured.


How could such a document be leaked from SCOTUS?  


The draft opinion would be in general circulation within the Supreme Court. The possibilities are numerous. I assume someone wanted Alito and friends to see the reaction before the deed was final.


What is the cornerstone of Roe v Wade?


A basic response would be the concept of individual rights and the requirement that state power not intrude deeply into an individual’s life without a strong “compelling” interest. Raw state power is disapproved by most of the American people. 


The Supreme Court, on all sides of the spectrum from liberal to conservative, long cited the need to restrain the raw exercise of individual state power. The Roe v Wade case was the first time state laws to ban abortion faced a test of fit with the core idea of liberty under the Constitution. The Supreme Court, with an open mind, studied the matter and found such bans unsustainable within a framework of protection for individuals from an unjustified exercise of raw state power. 


Without Roe v Wade, abortion bans would be subject to what is called “rational basis” review. That means anything a person could imagine as a rational reason for a law means the law passes Court review. 


What’s next?


The Supreme Court is involved in internal back and forth about the opinion. When justices decide they like the opinion as it is written, they write the author: “Join me.” The chief justice of the United States just issued a statement that the opinion is not final. That is obvious. But Alito is trying to gather support for the most confrontational, radical opinion he can write. We shall see. After the opinion is announced, and even now, we face massive unpredictable political turbulence.

When will the final decision on Roe v Wade be made?  


By the end of Supreme Court term for this year.


By: Kim Ward

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