The Leaked Dobbs Opinion Is a Call to Action

Reading the leaked draft Supreme Court opinion in Dobbs v. Jackson Women’s Health was an absolute gut punch. This opinion, if officially released by the Court, will cause unprecedented harm to millions of people suddenly denied their constitutional right to abortion, with disproportionate harm inflicted on the most marginalized. Roe has been a bedrock of our lives for nearly fifty years, protecting bodily autonomy, advancing gender equality, and upholding human dignity. Even though we knew this was a possibility, it is devastating to confront an imminent reality without Roe.

I want to underscore that right now, today, Roe v. Wade remains the law of the land. This draft opinion is only a draft at this point and does not change Roe in the here and now. This means that the draft opinion should not deter anyone who needs reproductive healthcare from accessing it.

The draft opinion represents an all-hands-on-deck call to action. For ACS, we are focusing our energy on three key fronts:

First, we are advocating for Supreme Court reform. The decision in Dobbs is why the Right packed the Court. It’s why Senator McConnell blocked Merrick Garland from even receiving a hearing and why the Senate jammed Amy Coney Barrett’s confirmation through while people were casting their ballots for Joe Biden. As a result of the Right’s packing, the Court was already facing a legitimacy crisis before this draft opinion. If the draft proves to be the final opinion, the conservative supermajority will wipe out the Court’s remaining legitimacy.

Our constitutional democracy necessitates a legitimate judiciary, as our courts rely on public confidence to enforce their decisions. And yet, public trust in the judicial branch dropped 13 points last year, and the Supreme Court’s public approval is at an all-time low – and is likely to drop even more in response to this opinion. The Court’s legitimacy crisis is untenable for our democracy. ACS has been advocating for Supreme Court reform for several months now, and we are doubling down on our advocacy. Reform includes adding seats to rectify the Right’s packing, ending life tenure for justices in favor of term limits, and non-structural reforms like restricting the use of the shadow docket and ethics reform.

Second, we are recruiting diverse, qualified candidates for federal and state courts. Our work to diversify the courts and to achieve a judiciary that reflects the public it serves has never been more important than it is right now. This draft opinion, amongst other things, proves that who sits on our courts matters. It is the byproduct of partisan ideologues being promoted to our highest court. We must be relentless in our work to recruit and promote qualified judicial candidates who understand the judiciary’s role is to protect our constitutional rights, not wipe them out.

We have built one of the largest nationwide judicial pipelines in the country, and we will continue to identify, recruit, and refer federal judicial candidates to the White House and to Senators. In addition, we are working to replicate this work at the state level. If Roe is overturned, the fate of reproductive rights in this country will rest with state legislatures and ultimately with state courts who will determine if and how state laws and constitutions protect reproductive rights. Who sits on our courts matters, from the Supreme Court to lower state courts. To join our efforts in identifying and recruiting judicial candidates, please email pathtothebench@acslaw.org.

Third, we are educating voters about the many, many ways that reproductive rights will be on the ballot this November. Races that haven’t typically seen debate about reproductive rights because of the existence of Roe will see it become a central topic this year. For instance, voters should know how their candidates for state attorney general will protect reproductive rights and how they would use their office, if elected, to counter the Supreme Court’s assault on civil rights. Similarly, if Roe is overturned, district and county attorneys will have discretion on whether to prosecute people for potentially violating new states laws prohibiting abortion, and voters should know how candidates would handle this. And protecting voting rights is directly related to protecting reproductive rights, which means candidates for Secretaries of State should also be prepared to discuss how they will respond to the Supreme Court’s decision in Dobbs.

And state judges! Every conversation that we have with friends and family in the coming weeks and months about how we protect reproductive rights must include a reminder that judges are directly elected in many states. The focus cannot just be on legislative races, we need voters to be just as informed and engaged on judicial races. And in states where judges are appointed, voters should be talking to gubernatorial candidates about the type of judicial candidate they will prioritize. If you care about who sits in your state house, you need to care just as much about who sits in your courthouse.

It would be naïve to believe that the Supreme Court will stop with Roe. This draft opinion lays out a roadmap for how to unravel a number of foundational civil rights, from same-sex marriage, to contraception, to inter-racial marriage. We must be prepared for states and private parties to start teeing up litigation to challenge these other precedents that we all thought were written in stone. This underscores the importance of prioritizing who sits on our federal and state courts as we fight to preserve civil rights, personal and bodily autonomy, and our constitutional democracy.

In addition to the legal implications, to be on the brink of losing Roe is deeply personal and emotional. This has been an agonizing week and is indicative of the weeks and months to come. We will fight to protect reproductive rights, and as we do, please also take care of yourself and each other.

Mark your calendars for next Tuesday’s Broken Law podcast episode, which features a conversation with Peggy Li, our director of chapters, Jenny Ma, senior staff attorney at the Center for Reproductive Rights, and Rosann Mariappuram, executive director of Jane’s Due Process. They discuss the draft Dobbs opinion, what it means for reproductive rights moving forward, and the intersection of reproductive justice and AAPI heritage. Find Broken Law on our website or wherever you get your podcasts.

Our National Convention is also coming up on June 16-17 in Washington, DC, and will feature a plenary about reproductive rights. If you haven’t already, register today! You can attend in-person or virtually.

Importance of the Courts, Reproductive Rights, Supreme Court, Supreme Court Reform