Bloomberg Law
May 4, 2022, 8:45 AM

Alito Draft Would Allow for Sweeping State Action on Abortion

Madison Alder
Madison Alder
Lydia Wheeler
Lydia Wheeler
Senior Reporter

States would be free to enact virtually any legislation limiting access and criminalizing abortion if the reasoning in a draft Supreme Court opinion aiming to overturn Roe v. Wade is adopted.

The leaked document authored by Justice Samuel Alito, for instance, could lead to restrictions that include potentially giving a fetus equal rights as a person.

Conveying so-called personhood could criminalize abortion, which would have a dramatic effect on people who want to end a pregnancy and those going through fertility treatments in order to have a baby, said Seema Mohapatra, a health law and bioethics professor at SMU Dedman School of Law.

“If there’s no constitutional right to abortion, states can do whatever they want,” Mohapatra said.

The Supreme Court on Tuesday acknowledged the draft’s authenticity but said it doesn’t represent a final decision in the blockbuster case, Dobbs v. Jackson Women’s Health Organization. Justices can change their position after an initial vote is taken.

But Alito’s version suggests a majority of the nine justices favor applying a rational basis test to reach their decision. It’s a standard that puts an emphasis on the state’s interest, which the conservative justice said lies in protecting life.

“The test that Alito announces is the easiest test to pass: the rationality review,” Rachel Rebouché, interim dean of Temple University Beasley School of Law in Philadelphia. “And essentially, past cases have interpreted that test as ‘we are going to uphold state law unless it just fails the laugh test.’”

Under the rational basis test, total abortion bans or those that prohibit the procedure after so many weeks of pregnancy could be allowed even in cases of rape and incest, said Elizabeth Sepper, a professor at the University of Texas at Austin School of Law.

States enacting so-called “trigger laws” designed to go into effect should the landmark 1973 decision in Roe be overturned are already stripping away those exceptions, she added.

“States just need a legitimate interest,” Sepper said. “It doesn’t have to be compelling.”

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Federal Ban

Aside from state actions like fetal personhood laws, legal scholars say Republicans in Congress may try to pass a federal ban on abortion.

“There’s an argument that the Fourteenth Amendment requires banning abortion, that a state’s failure to protect the unborn is itself a violation of the Constitution,” said Josh Blackman, a professor at the South Texas College of Law Houston and adjunct scholar at the Cato Institute, a libertarian think tank.

But Blackman doesn’t think the Supreme Court draft supports that line of thinking. Though some states will try to ban abortion at conception through fetal personhood, it’s unlikely they will be able to stop procedures from taking place in other states where they’re still lawful without a federal abortion ban.

“The only way California will be able to ban abortion is if the Supreme Court says the Constitution requires it,” Blackman said. “I don’t see anything in the court’s opinion that supports this broader conception that the Constitution requires banning abortion.”

Democrats currently control both houses of Congress and the White House, but the House and Senate could change hands after the midterm elections in November.

Potential Challenges

While the draft language would lower the bar for states when coming up with restrictions on abortion, there is still room for challenges.

Lawrence v. Texas, in which the court struck down a law that made sodomy a crime, is one case where the court applied rational review. Haphazard or discriminatory abortion laws could similarly fail that test, Rebouché said.

Another area are abortions in cases of medical emergencies, Rebouché said. “You could see there being challenges on other constitutional grounds, if laws don’t allow, for instance, abortions to save a person’s life, or maybe even to protect their health.”

Rebouché said she disagreed with what she views as the draft’s assumption that litigation will stop when the issue is returned to the states.

“I don’t think that what we’re approaching is this kind of simple world in which states legislate and that’s that. I think there are going to be continuing questions about what are the parameters for state legislation,” Rebouché said.

As written, some see the draft as a signal the justices may not take up many challenges.

“If that is the ruling of the court, I would assume that the Supreme Court justices will now just consistently deny certiorari absent some extraordinary, extraordinary set of circumstances, like a state coercing abortions,” said Teresa Stanton Collett, a professor a the University of St. Thomas School of law in Minneapolis and director of the school’s Prolife Center.

To contact the reporter on this story: Madison Alder in Washington at

To contact the editors responsible for this story: Seth Stern at; John Crawley at