In a leaked draft opinion, Supreme Court Justice Samuel Alito undermines Americans' right to privacy. This could have implications far beyond abortion access. Key TakeawaysThe Supreme Court is set to overturn Roe v. Wade, the ruling that guarantees the right to abortion, according to a leaked draft opinion.The draft contains an argument that threatens the right to privacy, which has served as the basis
A leaked Supreme Court draft opinion published by Politico on Monday indicates that the court is set to strike down Roe v. Wade, the 1973 landmark ruling that guarantees the federal protection of abortion rights.
In the draft, Justice Samuel Alito wrote that the decisions in Roe v. Wade and Casey v. Planned Parenthood were “egregiously wrong.”
The Court’s ultimate decision may not entirely align with the leaked draft. But experts are concerned that Alito’s writings could have implications for other reproductive rights, warning that restricting access to birth control could be next.
“What I am disturbed by is how extremist the language in Alito’s draft actually came across,” said Dázon Dixon Diallo, who founded the reproductive justice advocacy organization SisterLove in 1989. She added that parts of the draft set the stage for the Court to strike other civil rights that have been secured over the last 50 years.
“My deepest concern is how far it goes into controlling and eroding our individual liberties,” she said.
When the Roe v. Wade ruling was issued in 1973, the Court determined that the 14th Amendment protects personal liberty, which includes the right to privacy from government action. Earlier cases had also ruled that the Bill of Rights guarded personal, marital, familial, and sexual privacy.
Though the U.S. Constitution does not directly mention a right to privacy, the justices who ruled on Roe said that parts of the document do guarantee certain “zones of privacy.” The decision to terminate a pregnancy, they said, is included in those zones.
The ruling created a fundamental right to abortion, though that right could be limited by states and other lawmakers.
But in his opinion draft, Justice Alito wrote that because the Constitution doesn’t directly mention the right to abortion or privacy, Roe cannot stand.
Striking Roe under this argument could have “really sweeping” implications for the other rights that Americans enjoy that are based on the same right to privacy, Mara Gandal-Powers, JD, director of birth control access and senior counsel at the National Women’s Law Center, told Verywell.
The right to privacy has been used in many cases to grant protections that are “really important for how people structure their lives,” Gandal-Powers said. These include the right to marry someone of a different race, to access contraception, to have private consensual sex, and to marry someone of the same sex.
“What is in the draft is specific to Roe and Casey. But there are clear signals that Justice Alito, and potentially anyone who would sign on to an opinion like this, have real thoughts about whether that right to privacy, as he said, is ‘deeply rooted in our history,’” she said. “That should be really troubling for everyone.”
Alito maintained in his draft that overturning Roe would not jeopardize other civil rights. But Gandal-Powers said there is no indication that the justices would avoid using the same reasoning about the right to privacy when judging other cases.
Abortions will go on. What will not go on is the safety and the protection of people seeking this very basic and low-risk health service.
In 1965, Griswold v. Connecticut was the first instance in which the Court made a ruling based on “zones of privacy.” It ruled that married couples had a right to privacy against government restrictions on birth control.
The Court extended that right to unmarried individuals in Eisenstadt v Baird in 1972, saying the right to privacy shouldn’t depend on one’s marital status. Again citing the right to privacy, the Court said it was unconstitutional to ban the sale of contraceptives to people younger than 16 years and to limit access to non-prescription birth control, like condoms and Plan B, for all people in Carey v Population Services International.
Undoing Roe could open the door for the Supreme Court to overturn these key decisions that allow Americans to access contraceptives. But stripping such rights through the courts would take some time, Gandal-Powers said.
“It would be very unlikely to see a three-month period where the Supreme Court is issuing opinions on consensual sexual relationships, same-sex marriage, interracial marriage—that’s not how we will see this happen. It takes time,” Gandal-Powers said.
But attempts to reduce access to contraceptives are already underway across the country. A Missouri bill attempted to ban emergency contraceptives and intrauterine devices from being covered under Medicaid last year. Idaho banned public school-based health centers from providing emergency contraception, like Plan B, in a statute on “abortion-related activities.”
“It’s already started, and attacks on Griswold are something that I anticipate will happen more directly,” Gandal-Powers said. “They prey on confusion. They prey on people’s lack of knowledge about how sex works and how pregnancy happens to try to ban birth control and make it more difficult to access.”
Diallo, whose organization focuses on HIV and AIDS, said she is concerned that anti-gay and anti-transgender bills across the country could forebode a threat to people’s ability to access pre-exposure prophylaxis, an important medication to prevent HIV.
Undermining the right to privacy, Diallo said, is an attempt by certain lawmakers and judges to erode individuals’ freedom to make many different health-based decisions for themselves.
“It’s all about bodily autonomy, and that’s what they’re going right after,” Diallo said.
It’s important to remember that the Court hasn’t yet reached a decision in the Mississippi case and Roe is still the law of the land.
“There are people who have abortion appointments today, tomorrow, next week—they should still be able to go to those appointments. It’s still legal,” Gandal-Powers said. “We’ll work to help make sure that everyone who wants an abortion can get one, regardless of where you live, regardless of what your income is, regardless of any aspect of your circumstances.”
In her decades of reproductive health service and advocacy, Diallo said she has had to work hard to protect the right to legal abortion for people of color. Overturning Roe would make it even more difficult for people of color and low-income people to access reproductive health services.
Black people make up more than a third of abortion patients in the U.S., according to the Kaiser Family Foundation. For those who live in states that will outlaw abortions if Roe is overturned, accessing abortion care will become much more expensive and burdensome. The challenges associated with seeking an abortion out-of-state will be greater for lower-income Americans and further drive disparities in care, Diallo said.
“Abortions will go on. What will not go on is the safety and the protection of people seeking this very basic and low-risk health service,” Diallo said. “Giving birth, especially for Black women, is way more dangerous right now in the context of racial equity in our healthcare system.”
There are still ways to rally around reproductive rights, such as becoming involved in local and federal politics, donating to organizations advocating for abortion access, and supporting people in your life who may be or become pregnant.
“If you believe that equal protection matters in this country, then you will believe that abortion must remain legal and safe for all people who need it,” Diallo said. “For right now, it’s about women’s bodies and bodies that have uteruses. After that, who’s next?”
The Supreme Court is set to announce its final ruling on a case that could overturn Roe v. Wade in June. For now, abortion remains legal in every state, though some states like Texas have imposed substantial restrictions. You can visit a Planned Parenthood health center for more information on how to receive abortion care.