Supreme Court Draft Opinion Leak on Roe v Wade 2022

By Sheila S. Boston, President, New York City Bar Association

Like so many of you, I was shocked to learn that a February draft of a potential Supreme Court decision in Dobbs v. Jackson Women’s Health Organization had been leaked to the press, and that the draft portends a decision that overrules Roe v. Wade and Planned Parenthood of S.E. PA v. Casey. That a draft Supreme Court decision was leaked was unnerving in and of itself. As lawyers, it is part of our DNA to hold onto our faith in the judiciary, even if we sense something slipping away and even as we push back against ongoing efforts to undermine the independence of our third branch of government. After the shock of the leak subsided (a bit), I moved on to trying to comprehend the import of what the draft foretells: the likely reversal of Roe and Casey, the bedrock cases supporting reproductive freedom in this country for 50 years.

For perspective and guidance, I revisited the amicus brief the City Bar joined in the Dobbs case, through the dedicated work of our Sex and Law Committee (Farah Diaz-Tello and Iliana Konidaris, Co-Chairs). In the Brief Amici Curiae for Organizations of Women Lawyers In Support of Respondents, we joined dozens of other women’s legal organizations to declare this: “Mississippi’s Gestational Age Act…is a brazen repudiation of Roe v. Wade and Planned Parenthood of Se. Pa. v. Casey, and is plainly unconstitutional in its near-total ban of abortion after fifteen weeks. In its brief on the merits, the State of Mississippi has gone even further than its unconstitutional ban and has invited the Court to overturn Roe and Casey, equating the constitutional protections implicated by women’s ability to make a deeply personal decision about their bodies and their lives with those afforded to economic and social regulations. There is no doubt that if the Court accepts this invitation, more than twenty states would enact or begin enforcing restrictive abortion laws ‘reminiscent of the Dark Ages.’” (Citations omitted.) In other words, we would time travel back to 1972, and our Millennial and Gen Z children would have less control over their bodies and reproductive health decisions than did their mothers, older sisters, aunts, and older cousins. I am simply stunned by the audacity of this possible outcome, and frightened by ways that undoing Roe may threaten other hard fought rights and liberty interests upon which we have been relying and thought were well established — such as the right to contraception, the right of interracial couples to marry, and the right of members in the LGBTQ+ community to marry. I also fear that that the reversal of Roe may open a Pandora’s box which may result in upsetting the already delicate balance between state and federal rights. A marked reversion back to state rights may adversely affect the rights of historically disenfranchised communities, such as anti-discrimination laws, voting rights, and other federal rights which are supposed to protect individual liberties and rights of the minority.

Fortunately, our state has come a long way in ensuring that New Yorkers can access abortion care; indeed, we strengthened reproductive rights in the Reproductive Health Act of 2019, a bill the City Bar was proud to support. But in light of the leaked draft’s total denial that abortion is protected by our fundamental rights to equality and substantive due process, we must urge the New York Legislature to do more by, for example, making sure that people cannot be discriminated against on the basis of their pregnancy or pregnancy outcomes.

I acknowledge that this is a very delicate, complex, and controversial issue for our nation. But if we are truly striving to be a democracy “with liberty and justice for all,” then we must recognize and protect the privacy and health rights of all individuals in our society. My heart goes out to those — especially Black, Indigenous and other people of color, immigrants, people living in poverty, and LGBTQ+ people — in states where obtaining reproductive health care would become all but impossible should Roe and Casey fall. The harmful consequences of being forced to carry a pregnancy to term are well-documented, even deadly in a nation with stark disparities in maternal health outcomes. Or, with access to clinic-based care stripped away, people may find themselves criminalized for ending their pregnancies outside of the medical system.

So, I urge our members to take heed, take action, and speak up in defense of reproductive freedom across the country. Lawyers need to play a role in upholding the principle that everyone should be at liberty to make private health care decisions and reproductive choices. At the City Bar we are putting our heads together and working with our expert committees to determine how we can best prepare, educate, support and advocate in the days, weeks and months ahead. As always, we will keep you informed of our efforts and invite your participation.

As my Presidency of this august institution comes to an end, I thank you so much for all of the support you have demonstrated to me over the past two years. And I thank you for your membership and engagement with the City Bar, aka “the Bar of Hope”!

I am grateful for the assistance of Ms. Diaz-Tello and Ms. Konidaris in drafting this column.