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Examining the content of the leaked Supreme Court draft opinion and its implications


We're continuing to follow the wide-ranging implications of the leaked Supreme Court opinion draft which suggests a majority of justices will overturn Roe v. Wade. Now, if the draft becomes final, abortion laws would be left up to the states. To further understand the content of that draft opinion and its implications, we turn now to Carol Sanger, professor of law at Columbia Law School and author of "About Abortion: Terminating Pregnancy In The Twenty-First Century" (ph). Good morning.

CAROL SANGER: Good morning.

FADEL: So let's talk about this draft opinion. It's quite strident. Does this represent Alito's singular view, the view of the majority of the justices? How do we read this?

SANGER: I think you can read it safely as representing the view of the majority of the conservative justices. And it is indeed, as you said, strident, and it is aggressive. It starts out with one paragraph that says people feel all different sorts of ways about abortion, and then after that, it just sort of rips into Roe and Casey, the precedents for this case, Dobbs, and tears them apart.

FADEL: Were you surprised about the tone and language in the Alito draft? I mean, it doesn't seem at all neutral. He used terms like abortionists instead of abortion providers, and he writes, quote, "Roe was egregiously wrong from the start."

SANGER: That's right. And he points out that in the old days - i.e., before two days ago - we called fetuses potential life in Casey and in Roe. But here now we're calling them unborn children. So that's another way of rhetorically changing how we think about what this is all about.

FADEL: Now, in the draft opinion, Alito argues that nowhere in the Constitution is there language supporting the right to abortion. He states that abortion is clearly a matter to be legislated by the states. What kind of precedent would this reasoning set?

SANGER: Well, if this is to be our new law, it will feel familiar to some people who were around in the early '70s and '60s because we're returning exactly to that situation of criminal law is normally a matter decided by the states, and Roe v. Wade made an exception to that by saying, well, not if one of the acts that's called a crime is an actual fundamental right protected by the Constitution, which is what Roe said. Now Roe is more or less being erased so that there is no more federal right to make a decision about an abortion. And the common rhetoric had been, against Roe, well, the word privacy isn't in the Constitution. But Alito has upped the ante on that, and now he says the word abortion isn't in the Constitution. Well, that's true, but neither is the word aircraft carrier or political party or other concepts and things that may be regulated. That's not the key feature. It really is the privacy or liberty that the court acknowledged protected the right in Roe - the abortion right.

FADEL: So let's talk about privacy, this reasoning. What are the larger implications here? We heard the president reference same-sex marriage. I mean, could this go beyond abortion?

SANGER: Yes, it could. Alito tries to assure us that it won't because he said, well, none of these other areas - same-sex marriage, marriage in general, contraception - has involved a fetus, another life. But that really - that's a convenient way to distinguish abortion from everything else. But of course, even in Roe, the court had said abortion is unique. It is a reproductive decision. It will necessarily involve pregnancy. And so it's an easy shot to use this as a distinguisher because certainly, contraception involves the idea of a possible pregnancy. He really overstates his case, I think, in many places. But it hardly matters since he's the king of the party and is really calling all the shots.

FADEL: OK. So if this draft becomes final and it says this issue is up to the states, would any federal law legislating abortion protections or banning them then be challenged in court?

SANGER: There could be federal legislation acknowledging and bestowing a right to abortion's legality. So we could have federal legislation saying abortion in the United States is a legal process. And that would codify the rule of Roe and that people can get it up to a certain point. What is interesting is, first of all, there aren't the votes for it politically. There aren't the 60...

FADEL: Right.

SANGER: ...Votes needed in the Senate for this. I think one other interesting thing about this decision is that because it was leaked, it appears to us as the only decision. It's all we've got to go on. If the entire decision had - was ready, with all the dissents, we would have a much greater understanding of the weaknesses of Alito's logic and reasoning.

FADEL: Carol Sanger is a professor of law at Columbia Law School. Thank you so much.

SANGER: Quite welcome. Transcript provided by NPR, Copyright NPR.