Hours before Politico published an apparent leaked draft of a U.S. Supreme Court decision overturning Roe v. Wade and declaring there is no constitutionally protected right to choose an abortion in the United States, the Washington Post reported a group of Republican senators plan to introduce a nationwide restriction on abortions after the Supreme Court overturns or guts the rights guaranteed to Americans since 1973 by Roe.
According to the Post, Sen. Joni Ernst is one of the leaders of that group.
A group of Republican senators has discussed at multiple meetings the possibility of banning abortion at around six weeks, said Sen. James Lankford (Okla.), who was in attendance and said he would support the legislation. Sen. Joni Ernst (R-Iowa) will introduce the legislation in the Senate, according to an antiabortion advocate with knowledge of the discussions who spoke on the condition of anonymity to discuss internal strategy. Ernst did not respond to a request for comment.
As the Post explained, “Leading antiabortion groups and their allies in Congress have been meeting behind the scenes to plan a national strategy that would kick in if the Supreme Court rolls back abortion rights this summer…The effort, activists say, is designed to bring a fight that has been playing out largely in the courts and state legislatures to the national political stage — rallying conservatives around the issue in the midterms and pressuring potential 2024 GOP presidential candidates to take a stand.”
Little Village emailed Ernst’s Senate office seeking comment on the Post report, as well as asking about senator’s plans regrading national abortion restrictions and her reaction to published Supreme Court draft opinion, but has not received a reply.
Supreme Court scholars and longtime reporters covering the court all agree the leaked draft opinion that was published Monday night appears to be genuine. The 98-page draft was written by Justice Samuel Alito.
“Roe was egregiously wrong from the start,” Alito writes, before declaring no pregnant American has the right to decide whether to carry any pregnancy to term — regardless of what stage the pregnancy is in, if the fetus is viable or if the pregnancy is the result of rape or incest — if a state government or the federal government decides they must.
Alito’s majority opinion comes in the case of Dobbs v. Jackson Women’s Health Organization, an appeal of a lower court ruling striking down a Mississippi law that banned abortions after 15 weeks of a pregnancy. Even the extremely conservative Fifth Circuit Court of Appeals struck down the law as unconstitutional.
In its appeal to the Supreme Court, the state of Mississippi asks the court to take the extraordinary step of going beyond reversing the lower courts and overturn Roe. Last July, Gov. Kim Reynolds joined 10 other Republican governors in filing a friend-of-the-court brief in the case, also asking the justices to overturn Roe and declare there is no constitutional protection for abortion.
In his opinion, Alito dismisses the idea that stare decisis, the legal principle that courts should respect precedent, requires him and his fellow justices to respect half a century of rulings following the Roe decision, or the three decades of precedents stemming from the 1991 Supreme Court decision in Planned Parenthood v. Casey that reaffirmed Roe, with certain limitations.
We hold that Roe and Casey 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. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s his- tory and tradition” and “implicit in the concept of ordered liberty.”
According to Alito, the right to an abortion cannot be considered “deeply rooted,” because “Until the latter part of the 20th century, such a right was entirely unknown in American law.”
This assertion calls into question numerous other rights Americans take for granted. Not only did some states have laws against same-sex marriage until 2015, when the Supreme Court invalidated them in its Obergefell decision. It wasn’t until 2003 the court struck down state laws criminalizing any form of sex involving something other than vaginal insertion in its Lawrence v. Texas decision. (Before that decision, states could use so-called “anti-sodomy laws” to harass and prosecute LGBTQ people.)
Even such decisions as those that struck down laws against interracial marriage (Loving v. Virginia, 1967) and bans on access to contraception (Griswold v. Connecticut, 1965) aren’t much older than Roe, and involve rights not referenced in the Constitution.
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Alito clearly recognizes how the standard he articulates to overrule Roe can be used to invalidate many other rights. He states, “We emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
This attempt to avoid the implication of the ruling is meaningless. It does nothing to constrain any justice from citing the Dobbs decision as precedent in future cases. In its 2000 decision in Bush v. Gore, which awarded George W. Bush the presidency, the court majority said its decision was unique to that case and could not be used as precedent. Since then, justices have cited Bush v. Gore in decisions. It is, of course, ironic that Alito thinks he can bind future justices in a case which dismisses stare decisis.
Although Ernst will reportedly play an important role after Roe is overturned, it’s worth noting how important Sen. Chuck Grassley was in creating the circumstances in which a majority decision like Alito’s could be written.
According to reports on Monday night, Chief Justice John Roberts supports the Mississippi law, but not completely invalidating Roe. If that is the case, then Grassley’s extraordinary actions as chair of the Senate Judiciary Committee to prevent President Obama from appointing a Supreme Court justice by refusing to even hold a hearing on Merrick Garland’s nomination will have been decisive in providing the five-vote majority to end the right to an abortion.
Currently in Iowa, state supreme court precedent states that the Iowa Constitution provides a stronger guarantee of the right to choose to end a pregnancy than the U.S. Constitution does, prior to 20 weeks of pregnancy. Alito’s decision would do nothing to change that, but that doesn’t mean the right to an abortion is settled law in the state.
Last year, Republicans in the Iowa Legislature pushed through an anti-abortion amendment to the Iowa Constitution on party-line votes. It needs to pass both chambers again during the next legislative session and be approved by voters to be added to the state constitution. Gov. Reynolds has called the anti-abortion amendment a top priority.
The Iowa Supreme Court could also follow Alito’s example, dismiss stare decisis, and overturn its 2018 decision regarding the right to choose. The make-up of the court has changed since that decision, with four of the current seven justices appointed by Reynolds.
During an appearance before a conservative Christian gathering in July 2019, Reynolds boasted that “the tide is turning in Iowa’s Supreme Court,” she added, “In just two short years, we’ve moved the needle from left to right.
At that time, Reynolds had only appointed two of the four justices she has placed on the Iowa Supreme Court.
The court is currently considering a Reynolds administration appeal of a district court ruling striking down a 24-hour waiting period for abortions the governor signed into law in 2020.
Judge Mitchell Turner ruled the law both violated the constitutional provision requiring bills to only address a single topic, because of how Republican in the legislature passed the bill, and the guarantee to an abortion under due process and equal protection clauses of the Iowa Constitution that the state supreme court relied on in its 2018 decision.
The Iowa Supreme Court’s decision in the case is expected to be handed down before the end of this term.
The U.S. Supreme Court decision in Dobbs is expected to be formally published before the end of June. Alito’s draft may change somewhat before that happens, but it is unlikely its substance will be altered. Along with the majority decision, dissents will also be published.
No dissent was leaked along with Alito’s draft, but any dissent will likely address a question Justice Sonia Sotomayor raised during oral argument in December.
“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” the justice asked. “I don’t see how it is possible.”
