News

College of Law faculty members provide insight into the leaked opinion showing Supreme Court justices are working on a decision to overturn Roe v. Wade. Professor Paula Johnson discusses how this will impact other civil rights cases and/or law, while Professor Keith Bybee addresses how the leak happened and what this means looking forward. In an op-ed piece published last week on Common Dreams, Professor Jennifer Breen writes “The ‘Raw Judicial Power’ of Samuel Alito Is an Attack on Dignity, Autonomy, and Progress.”

Each offers insight into what this means in the current political climate and how this decision could further impact existing laws that safeguard civil rights and laws.

Remarks from Professor Paula Johnson:

“My opinion is that the implications and ramifications of overturning Roe are serious and dangerous to women’s lives. Women’s bodily integrity and autonomy will be upended and their healthcare and reproductive decisions even criminalized if this indeed becomes the Court’s final decision. This will especially affect women who are marginalized not just because of gender, but also race, ethnicity, sexuality, gender identity, and poor economic status.”

“As such, the decision further throws the jurisprudence of privacy, liberty, and autonomy into jeopardy as constitutionally protected rights. It would be wrong and shortsighted to think this only involves women’s bodies and lives; it is much more far-ranging than that and has the potential to intrude on the individual lives, families, and relationships of all persons. Not to mention the criminalization of healthcare providers for addressing the medical needs of their patients. These rights should not be subject to the political whims of individual states; women’s access to healthcare and reproductive choice should not depend on where they live.”

“Interestingly, we do not know Chief Justice Roberts’ opinion. He has been a proponent of adhering to precedent; it will be interesting to see if he does so in this instance, where so much is at stake for women’s ability to decide the trajectory of their lives without government interference, judgment, or criminalization.”

Remarks from Professor Keith James Bybee

“Although this week’s news of a leaked draft Supreme Court opinion makes the high bench look like a highly partisan body, it was Oliver Wendell Holmes who first broke the news that law is mixed up with politics—and he did so over 100 years ago. Holmes’s insight is widely shared by legal academics of all stripes today and is also evident in decades of public opinion survey data that shows substantial majorities of Americans agreeing that the judicial process is infused with politics.”

“Remarkably, this political view of the judiciary has co-existed with the belief that judges make their decisions on the basis of law and impartial principle. As we look forward, the question is not what people will make of a Court suddenly revealed as political. Instead, the question is whether the long-held half-law, half-politics view of the judiciary will survive.”

“The ‘Raw Judicial Power’ of Samuel Alito Is an Attack on Dignity, Autonomy, and Progress” by Professor Jennifer Breen

“The leak of the U.S. Supreme Court’s draft opinion in the Mississippi abortion ban case has put into authenticated form an announcement that abortion advocates on both sides of the aisle have been predicting for years: stack the Court with Republican-appointed justices and Roe v. Wade will be overturned. The Court’s leaked opinion does just that, holding that both Roe and Casey are now bad law because there is no longer any constitutional right to abortion.”

“The current draft—which will be revised between now and its formal publication, likely in June—tells us a lot about where the Court stands on abortion, of course, but also other constitutional rights and the role of the courts in our constitutional republic.”

“So why does it matter to other constitutional rights that Alito doesn’t think individual liberty includes the right to decide whether to have an abortion? Because the liberty interest protected by the Due Process Clause and the right to privacy it encompasses are also the bases for the Court’s protection of gay marriage, the right to contraception, the right to private consensual sex, and the right to interracial marriage.”