UNC law professor warns if Roe v. Wade is overturned, other civil rights could come into question
A leaked draft of a U.S. Supreme Court opinion shows the high court could consider overturning the landmark 1973 Roe v. Wade case that legalized abortion across the country and return that decision to individual states.
Chief Justice John Roberts on Tuesday confirmed the authenticity of the document.
University of North Carolina constitutional law professor Andy Hessick said he’s never seen the U.S. Supreme Court reverse course on a civil right once it has been granted. And overturning Roe v. Wade could open the door to years of legal battles over other civil rights as well.
In Roe v. Wade, the court ruled the constitutional right to privacy and due process gives women the right to make individual decisions about whether to carry a child or terminate a pregnancy. It meant that states could not individually ban abortions.
In the leaked draft opinion, Justice Samuel Alito, writing for the majority, said that ruling was a mistake. He wrote that the Constitution should be interpreted to guarantee only the rights that were historically recognized at the time the Constitution and its amendments were written.
Hessick said Alito’s reading of the Constitution would undercut many of the civil rights decisions the court has made, most recently same-sex marriage, but going back to the civil rights movement.
“In the 1960s [and] ‘70s, there were a number of rights that were recognized, like the right to birth control, the right to marriage, the right not to be subjected to sterilization,” Hessick said. “All of them potentially could now be questioned under the reasoning that we should look only to those rights that were recognized back at the time of the ratification of the 14th Amendment.”
Alito said in the leaked opinion that abortion is different from those other civil rights because it involves another life. But Hessick said the legal underpinnings are the same, and he expects lawsuits challenging many of those other rights if the draft becomes the court's final decision.
There's a possibility a Supreme Court justice could change their mind, but Hessick said that's not a common occurrence. The ruling could leave regulating abortion up to state lawmakers.
Dozens of states nationwide have prepared for this eventuality and have “trigger laws” in place to revoke the right to abortion as soon as the Supreme Court makes a change. North Carolina has no such law, but, Hessick said, North Carolina lawmakers could seek to pass one when they come back for the short session starting later this month.
Lawmakers are unlikely to be able to pass a law banning abortion this year. Democratic Gov. Roy Cooper would veto any such bill, and Republicans don’t have a veto-proof majority. But the margins are slim. Republicans would need to pick up only three state House seats and two state Senate seats in this fall's election to be able to override a veto.
Clinics, women divided over possibility of change to Roe v. Wade
Calla Hayes is the owner of Preferred Women’s Health Center, a clinic that performs abortions at locations in Raleigh and Charlotte. She said the leaked Supreme Court opinion “wasn’t shocking.”
“This is something we all kind of expected,” Hayes said of the leak. “I mean, we didn’t want it to happen by any means, but we were prepared.
“I think advocates have been talking about this possibility for years at this point.”
At Your Choice Pregnancy Clinic, director Tonya Nelson disapproves of the leak.
“First and foremost, I think the leak is a travesty to the sanctity, to the … highest court of our land,” Nelson said.
Your Choice has three locations in Raleigh, Fuquay-Varina and Fayetteville.
However, Nelson said she is “ecstatic” if the Supreme Court allows states to make their own decisions about abortion rights.
“We do believe abortion should be illegal, and we do believe that I should be sent back to the states where it needed to be originally,” Nelson said. “Anyway, this should be something that the state legislators and the citizens of those states should decide for their citizens.”
Nelson said she wasn’t sure what North Carolina lawmakers would decide if given the power to determine the legality of abortion in the state.
Durham resident Kelsea McClain, who has had three abortions and believes strongly in a woman's right to choose, said, "I never would change my mind about it. I would not go back and make a different choice."
Carla Barbour had an abortion when she was 18, something she deeply regrets, especially after having three children.
"I don't feel like I was adequately prepared for what I would experience," Barbour said.
Barbour said she wanted other women to know they are not alone when facing an unplanned pregnancy.
"Either decision is going to be one of the hardest decisions they ever make in their life, whether it's choosing life or it is choosing an abortion," Barbour said.
WRAL News poll shows NC voters split on issue of abortion
In April, WRAL News and SurveyUSA conducted a scientific poll that showed North Carolina voters are split on what the state should do with its abortion laws.
SurveyUSA’s scientific poll found:
- 17% felt the state should outlaw abortion
- 22% felt the state should pass more restrictions
- 19% felt the state should lower restrictions
- 26% felt the state should leave the laws as they are
- 16% weren’t sure
