Michelle Peterson, from Silver Spring, Maryland, stands outside the U.S. Supreme Court building holding a sign in support of abortion rights in the wake of a leaked draft opinion that suggests the Court would overturn Roe v. Wade, in Washington, D.C., on Wednesday, May 11, 2022. Photo: Diego M. Radzinschi/ALM
The leaked opinion in Dobbs v. Jackson Women’s Health Organization may not be the final word, but no one should count on there being a different result: Roe v. Wade is overruled, and Mississippi can outlaw abortions after 15 weeks. The question is, are there any remaining constitutional limits on what a state can do to restrict abortions? While Justice Samuel Alito does not answer that question directly, everything in his opinion points toward giving states total freedom to make their anti-abortion restrictions as all-encompassing as they wish.
Perhaps the best place to start is to note what is not in the draft opinion. Nowhere are there any specific examples of laws that would go too far in the post-Roe world. No exceptions for rape or incest or the life of the mother. By contrast, consider Justice Antonin Scalia’s opinion in District of Columbia v. Heller, finding an individual right to bear arms in one’s home. In the concluding section of that decision, the court expressly stated that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
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