On May 2, 2022, a draft opinion in the pending US Supreme Court case Dobbs v. Jackson Women’s Health Organization was leaked to the public. The draft opinion purports to overrule the landmark case Roe v. Wade (1973)—which confirmed the constitutional right to abortion—by calling it “egregiously wrong from the start.”
This marks the first time in the Court’s 233-year history that a draft opinion has been released before the Court reached a final decision in a pending case. On May 3, 2022, Chief Justice Roberts issued a press release confirming the draft opinion’s authenticity and “directed the Marshal of the Court to launch an investigation into the source of the leak.”
Besides the shock of this unprecedented leak—and despite the draft opinion’s length at 98 pages—the opinion fails to engage with the United States’ obligations under binding human rights treaties to ensure safe and legal abortion access. This is a glaring omission in at least three significant ways.
First, the draft opinion does not grapple at all with the United States’ international human rights obligations to protect access to abortion services. Withers filed an amicus curiae brief on behalf of the UN Special Rapporteur on the Right to Health and other UN mandate holders in support of the Respondents detailing how the United States’ binding obligations under human rights treaties require it to ensure the right to equality and freedom from non-discrimination, the right to privacy, the right to life, the right to health, and the right to be free from torture and cruel, inhuman or degrading treatment. These human rights treaty obligations encompass the reproductive rights of women and girls, including safe and legal abortion access.
Second, the draft opinion makes no mention of how dismantling the Roe and Casey precedent and giving states carte blanche to violate US treaty obligations also violates the Supremacy Clause of the US Constitution. By ignoring the United States’ human rights treaty obligations and the obligation of individual states to comply with them as the “supreme Law of the Land,” the draft opinion fails to conduct a comprehensive constitutional analysis.
Third, the draft opinion does not consider that overturning a half-century of constitutional protection for abortion access would put the United States out of step with the trend towards the liberalization of abortion access around the world and constitute a retrogression in violation of international law. With this retrogression, the United States is on the precipice of becoming an open and notorious human rights violator and causing irreparable damage to tens of millions of individuals who will be deprived of safe and legal abortion access in states that impose abortion restrictions or outright bans on abortion access.
The Court’s final decision in Dobbs is expected to be released near the end of the Supreme Court’s current term in June 2022.
The Withers team behind the amicus curiae brief is led by Partner Emma Lindsay and includes Senior Associates Jovana Crncevic, Camilla Gambarini, Joseph Gallo, Associate Tyler Goss, Trainee Giverny McAndry, and Paralegals Daniela Dimitriu and Lalindra Sanichar.
Withers’ prior insights on the Dobbs case are available here and here.