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Penn Carey Law Reacts to Leaked Opinion

May 03, 2022

Profs. Roosevelt and Wolff as well as student leaders of a pro bono reproductive justice project share their insights.

According to a leaked draft published by Politico, the Supreme Court has voted to overturn abortion rights. Notably two University of Pennsylvania Carey Law School professor have submitted amici curiae briefs to the Court in Dobbs v. Jackson.

Dorothy E. Roberts, George A. Weiss University Professor of Law and Sociology and the Raymond Pace and Sadie Tanner Mossell Alexander Professor of Civil Rights, co-authored a brief that argues that abortion access is a key element of racial justice and that the denial of such access is a form of racial subordination.

Professor of Law and History Serena Mayeri co-authored a brief that identifies and explains the equal protection principles underlying the case.

Members of the Law School community have shared the following reactions to the leaked opinion.

Kermit Roosevelt, David Berger Professor for the Administration of Justice:

“First, in terms of who leaked it and why, it seems much more likely to me that it comes from the right in response to an actual or threatened defection by one of the five who voted to overturn Roe. Leaking this early draft makes that more costly for a defector because now people will think that they changed their vote after the leak in response to public outrage. So it makes sense as an attempt to lock in the result. It’s hard to see what a defender of Roe would get from the leak.

Second, in terms of consequences, it adopts a methodology that suggests recent gay rights decisions, from same sex marriage to the invalidation of sodomy bans, are not secure. If there are five justices who endorse this draft, it’s unlikely that they will stop with Roe.

I think it’s unlikely that anyone can do anything to influence the Justices. They don’t like to appear to be influenced, which is why the leak makes more sense as a method of locking in the result.”

Tobias Barrington Wolff, Jefferson B. Fordham Professor of Law and Deputy Dean of Equity & Inclusion:

“The fact that this draft opinion was leaked to the Press – an unprecedented breach, to my knowledge – is an assault on the institutional legitimacy of the Court, a naked political act that disregards the rule of law and the integrity of the Court’s decision-making process. We should not have this draft in front of us. But we do, and if the final opinion looks substantially like this draft, it is a grave moment in our constitutional history. Justice Alito has crafted an opinion suffused with contempt and rage that demeans both jurists and ordinary people who believe that the Constitution protects the right of women and girls to control their own reproductive lives. Indeed, he has crafted an opinion that disregards the lives of women and girls altogether. The day-to-day reality of women and girls makes no appearance in this angry disquisition. Instead, Justice Alito proclaims Roe v. Wade to be as egregious and damaging as Plessy v. Ferguson, the Supreme Court decision that licensed racial apartheid in the United States for more than half a century.

There are serious debates to have about the constitutional foundations of Roe v. Wade. This draft opinion does not engage those debates in a mature fashion. It simply takes away a constitutional right that women and girls have relied on for generations, essentially telling them that they should be ashamed of themselves for believing they possessed that right in the first place.”

Annie Blackman L’22, Co-Chair of If/When/How, a student pro bono project dedicated to lawyering for reproductive justice:

“The Guttmacher Institutes estimates that once Roe falls, 26 states in the country are likely to ban abortion services. If Justice Alito’s majority opinion becomes final, the rights of marginalized people in at least over half of states in the country will be shattered.

Despite Justice Alito’s bad faith argument that Roe represented an attack on Black people in the United States, Black people who give birth are most likely to suffer because of this decision. The criminalization of self-managed abortion, of miscarriage, and of pregnancy is steadily increasing in our country — and this decision, if released, is likely to cause a dramatic increase in the number of people who are arrested because of their pregnancy outcomes. Black people are the most likely to be arrested and subjugated to the criminal justice system because of their pregnancies. Furthermore, studies indicate that abortion bans will exacerbate the already excessively high rates of Black maternal mortality and morbidity in the country, where Black people who give birth are three times as likely to die as their white counterparts.

Pro-life advocates who push these baseless arguments do not care about ensuring the health and safety of pregnant people or Black people. Just like they do not care about the queer people whose rights will be threatened if this decision is released, those whose access to birth control will be limited or eliminated, people who will face imprisonment for suffering miscarriage and stillbirth, or any other marginalized group who now faces a frightening future in which their rights are no longer guaranteed. They care about control.

The leak of the Supreme Court’s majority opinion in the Dobbs case is devastating but not shocking. Reproductive Justice advocates have warned for years that the day would come where Roe was no longer the law of the country — but they have also been planning. Abortion is still legal in the United States and organizations who do the work to protect the rights of people who need access to abortion and defense from criminalization need our help now more than ever. I hope that my fellow law students and future colleagues commit themselves to learning more about reproductive justice, to supporting abortion funds in need, and to assisting organizations like the Repro Legal Defense Fund, which provides support for those who have been arrested in connection to self-managed abortion.

Abortion access is necessary, for everyone, everywhere, always.”

Isabella Hernandez L’24, Co-Chair of If/When/How:

I’m not surprised by the decision, but it hurts nonetheless.

Wealthy individuals, especially white individuals, will always have access to safe abortions regardless of what their state chooses to do when this decision is finalized. I fear for the people in this country who depend on Roe and Casey to access abortion care and who depend on the reasoning undergirding those cases and others like Lawrence and Obergefell for fundamental rights protections.

Reproductive justice is about people having the freedom to choose if, when, and how to have children. It’s about being able to raise those children in safe, supportive environments. Sister Song has long taught us the importance of the reproductive justice movement beyond abortion. Abortion is one piece of the puzzle. We need abortion care so that someone can’t afford a child and/or doesn’t want to have a child can make that deeply personal decision for themselves.

Our system doesn’t even support poor families once children are born, instead ripping children away from parents/guardians and sticking them in the family policing system (nod to Prof. [Dorothy E.] Roberts). Removing abortion will only overload an already rotten system. People won’t be able to abort and then once the child is born, if born at all given how high-risk pregnancy is, especially for Black women, the child will be taken from their home if the state deems the parents unfit. But, because people are born into poverty by no fault of their own and can’t move up under a racial capitalist system that only perpetuates poverty rather than uplifting those with the least resources, their dependence on state resources gives states greater power to surveil them and remove their children more easily.

When abortion care becomes illegal, poor people will suffer immensely. And the justices who signed onto Alito’s opinion will sleep well at night knowing they selectively followed a Constitutional interpretation analysis to say that the Roe reasoning was never a sound one based in the Constitution, even if their doing so takes fundamental rights away from people. They care more about pleasing our dead founders than the real people today whose rights are on the line. Poor people, Black people, Latinx people, Indigenous people, Women, Queer people, People with disabilities…the list goes on, and the identities intersect.

Our democratic process is broken. Voting won’t save us. We need to use people power to move this country in the direction we want it. We need a revolution in thought and action to save ourselves from what’s to come.”

Read more of our community’s perspectives on today’s pressing legal issues.