Bloomberg Law
May 3, 2022, 4:27 PM

SCOTUS Draft Rejecting Roe Must Spur Legal Profession to Speak Up

Lauren Stiller Rikleen
Lauren Stiller Rikleen
Lawyers Defending American Democracy

The U.S. Supreme Court is apparently poised to overrule Roe v. Wade, eliminating the right of women to have autonomy over their own bodies.

For those born after 1973, when Roe was decided, it is a reversal of cataclysmic implications for the right to privacy in every sphere of their lives. For those of us born prior to that decision, this is the arrival of the moment long feared: The repercussions for women’s rights and self-determination are undeniable. This is no hyperbole; this is the world we are about to inherit.

The extraordinary leak to Politico of the draft opinion is as breathtaking for its break with Supreme Court norms as it is devastating in its content. The question that must now be asked is: Will this be the moment that wakes the somnolent legal profession that has largely ignored several years of attacks on our democratic institutions and the rule of law?

The profession remained silent—indeed, one could argue it acquiesced—in the appointment to the Supreme Court of justices who had previously expressed opposition to women’s right to choose. There was little organized outcry from lawyers when a U.S. president openly declared that he would only nominate individuals committed to overturning Roe. Rather, along with many senators in the confirmation process, there was a reliance on hope over facts and obfuscation over reality.

Invoking History Ignores Women’s Rights

The leaked draft opinion relies, in part, on centuries of history criminalizing abortion from 13th century English cases, to Sir Edward Coke’s 17th century treatise, and onward through the early centuries in America.

Apparently writing for the majority, Justice Samuel Alito explains in the draft the alleged importance of this history lesson: “In sum, although common law authorities differed on the severity of punishment for abortions committed at different points in pregnancy, none endorsed the practice. Moreover, we are aware of no common law case or authority, and the parties have not pointed to any, that remotely suggests a positive right to procure an abortion at any stage of pregnancy.”

Ignoring the importance of nearly 50 years of settled law since 1973, and the concomitant explosion in cases adjudicating individual rights that has evolved in modern times, Justice Alito, in the draft document, instead relied on this bleak history: “The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.”

What does it say when the majority of the Supreme Court, in 2022, is willing to justify the elimination of a woman’s right to choose by, in part, detailing this harsh history throughout the same centuries that women were treated as chattel and had no legal rights of any kind?

As former New York Chief Justice Judith Kaye wrote in her memoir, history is replete with examples of how the law “legitimized, perpetuated, and institutionalized society’s belief that women were unequal, subordinate.”

It is not a stretch to ask where these justices might go with this “logic” as they put government back in control over women’s bodies. This draft opinion essentially sets the stage for states to enact whatever draconian laws they see fit in criminalizing abortion, as Texas and many other states have already begun to do.

No Defense for Victims of Crime

In its defense of the life of “the unborn,” the court seems to offer no mercy for pregnant women who are raped, or teenagers who become pregnant by incest or other form of sexual abuse, or when a pregnancy threatens the life of a mother. Women would be reduced to vessels whose fate is up to the state, which can determine their punishment for violating whatever behavior the government chooses to prohibit.

Bar associations and law school administrators and students can no longer ignore the implications of this moment in Supreme Court history and its impacts on the future. Every lawyer has an obligation to speak out against this decision and its profound effect on the lives of women and their families.

For three decades, the American Bar Association has been on record in support of a woman’s right to choose. Its response to this leak should be immediate and strong. The ABA should lead the nation’s lawyers in developing strategies to ensure that the right to choose is protected.

Similarly, the legal academy has a role to play, and students should help lead the effort. Every law student has a stake in the future of the profession and the shaping of our laws. Ensuring that women remain in control over decisions that affect their very bodies is fundamental.

Women’s rights organizations have long raised fears that this day would come. And now, through this extraordinary breach of Supreme Court secrecy, we apparently have a glimpse into the future.

The profession must decide whether it will respond with the passion and purpose this moment deserves, or whether lawyers will be passive observers to another significant loss of constitutional protections. Without this response, the future may soon look more like that bleak past Alito touted in his rationale for the loss of this fundamental right in the draft document.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Lauren Stiller Rikleen is president of the Rikleen Institute for Strategic Leadership and the author of “The Shield of Silence: How Power Perpetuates a Culture of Harassment and Bullying in the Workplace.” She is also the interim executive director and member of the board of Lawyers Defending American Democracy.