Student Perspectives on Leaked Opinion

Alana Sheppard L’22 and Karis Stephen L’23 recently published essays in The Regulatory Review that explain and explore some of the issues surrounding the leaked draft opinion in Dobbs v. Jackson Women’s Health Organization, an abortion case currently before the Supreme Court.

In “Protecting Abortion Post-Roe,” Sheppard, Senior Editor, outlines in a synopsis essay several policy suggestions for federal and state governments to protect abortion rights that had been presented in a Center for American Progress report by Jamille Fields Allsbrook and Nora Ellman:

Allsbroook and Ellmann insist that in the absence of continued constitutional protection of abortion rights, they must be enacted into statutory law by state and federal lawmakers.

They encourage Congress and state lawmakers to codify the right to get an abortion and go beyond Roe, which they describe as establishing a minimum floor for abortion rights. They emphasize that state lawmakers should not wait for federal law before enacting these policies, whether through “legislation, ballot initiatives, or constitutional amendments.”

Lawmakers can further strengthen the right to an abortion by enacting laws that prohibit unnecessary restrictions on abortion care, such as the Women’s Health Protection Act, a bill introduced in the 116^th Congress.

Even if legislation protects the right to abortion, Allsbrook and Ellmann contend that courts will play a significant role in assessing the validity and necessity of abortion restrictions. They urge policymakers to prioritize appointing judges with a diverse range of identities and with a history of supporting abortion rights.

In “Aborting the Right to Abortion,” Stephen, The Review’s Community Editor, explains in a news story the significance of the draft opinion:

In his draft opinion, Justice Alito calls Roe “egregiously wrong from the start” and an “abuse of judicial authority.”

Roe v. Wade established a framework for protecting a pregnant person’s right to choose, holding that the State’s interest in the “potentiality of human life” becomes the most compelling at the point of viability. According to the Supreme Court in Roe, when pregnancy reaches this point, the State can “regulate, and even proscribe, abortion, except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”

But in the draft Dobbs opinion, the Supreme Court appears ready to say that the government can intervene with constraints on abortion before the fetus realizes the point of potential for human life. The draft says that the ultimate determination on any constraints on abortion should be left to state legislatures.

A potential Dobbs decision based on the reasoning in the Alito draft would find itself up against a line of cases that affirms the fundamental right to privacy. In Roe, the Supreme Court had specifically named the criminalization of abortion as a violation of the “Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman’s qualified right to terminate her pregnancy.”

Read Sheppard’s full article.

Read Stephen’s full article.

Read more reactions to the leaked draft opinion from the Law School community.