Democrats reacted emotionally and aggressively to a leak Monday evening of a draft Supreme Court opinion that suggested a majority of justices are seriously considering overturning Roe v. Wade and returning the question of abortion to the states.

Rep. Alexandria Ocasio-Cortez (D-NY) warned that the Supreme Court will move next to strip away same-sex marriage and civil rights.

“They will not stop here,” cautioned Rep. Ilhan Omar (D-MN), referring to the conservative majority on the bench.

And President Joe Biden said Tuesday that the decision, if finalized, means “every other decision relating to the notion of privacy is thrown into question.”


The draft opinion focuses specifically on how justices structured the 1973 majority opinion in Roe, however.

Justice Samuel Alito, who authored the draft opinion that leaked to Politico, noted that the lines the court drew in Roe — allowing states to ban abortions after so-called viability, or the point at which a baby can survive on its own outside the womb — were arbitrary and not the result of proper constitutional analysis.

Alito said Roe’s “reasoning was exceptionally weak” and represented “an abuse of judicial authority.”

Much of the liberal hand-wringing over what the draft decision in Dobbs v. Women’s Health Organization signals had focused on the court’s skeptical interpretation of the constitutional backing for abortion rights.

If the conservative majority concludes that the Constitution provides insufficient backing for federal abortion rights, the liberal argument goes, then that same majority could conclude other federal rights that sprang from court precedent also have no backing.

Tom Jipping, senior legal fellow at the right-leaning Heritage Foundation, said that liberal argument is inaccurate.

“The Supreme Court said that abortion, the presence of an unborn child, makes abortion 'inherently different' than any of those other privacy rights,” Jipping told the Washington Examiner. “Simply because the court says there’s no right to abortion in the Constitution does not mean that it’s going to say that about other privacy rights.”

The ruling in Roe does indeed set abortion apart from other contentious issues that have stemmed from a constitutional right to privacy, such as same-sex marriage.

“The pregnant woman cannot be isolated in her privacy,” Justice Harry Blackmun wrote in the majority opinion for Roe. “She carries an embryo and, later, a fetus, if one accepts the medical definitions of the developing young in the human uterus.”

“The situation therefore is inherently different from marital intimacy, or bedroom possession of obscene material, or marriage, or procreation, or education,” Blackmun continued.

Despite the warnings from liberals that LGBT rights will be the next target of the Supreme Court, Alito specified in his leaked draft, as Blackmun did in the original ruling, that the issue of abortion is substantially different from other issues typically lumped in with abortion in political discourse.

Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage,” Alito wrote in the draft opinion, “but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘un-born human being.’”

And the question at the heart of Dobbs, the case for which the draft leaked this week, is not whether abortion should be outlawed. Instead, the case asks whether individual states can make abortion laws that depart from the standards set in Roe and affirmed years later in the 1992 Planned Parenthood v. Casey decision.

That means the Supreme Court is highly unlikely to outlaw other rights, such as contraception access and marriage equality, that activists on the Left have warned it may next try to do.

“The court said if you’re claiming that the Constitution protects a right that’s not in the Constitution, you have to show that it’s implicit in the concept of ordered liberty or inherent in the country’s history and tradition,” Jipping said. “Each one of these rights rises and falls on its own when those criteria are applied. They’re not affected by the answer that comes from a different right.”


Some states have already begun to position themselves to take advantage of a ruling in Dobbs that allows legislatures to write their own abortion limits or protections.

Oklahoma, Kentucky, and Idaho are among the states that have taken steps toward passing laws that restrict abortion earlier than the age of viability, which doctors typically place around 24 weeks of pregnancy, in anticipation of a ruling that returns abortion decision-making to the states.

Some blue states, including Colorado and California, have passed or proposed laws that enshrine abortion protections in anticipation of such steps.