PORTLAND, Ore. (KOIN) — Abortion rights are again making headlines after POLITICO reported a draft opinion from the U.S. Supreme Court intends to overturn the nearly 50-year-old Roe v Wade decision.
Within moments, many online were questioning what was next, how to treat a draft opinion versus an actual decision and much more.
The Roe v. Wade decision has guaranteed federal constitutional protection of abortion rights for nearly the last 50 years. POLITICO has not said whom it received the draft opinion from, but on Tuesday, after the article was published, Chief Justice John Roberts confirmed the draft is authentic.
This interview with Lewis & Clark College law professor Tung Yin was conducted before Roberts’ announcement on Tuesday, which confirmed the authenticity of the draft opinion.
Here are his responses to KOIN 6 News’ questions:
Editor’s Note: KOIN 6 News made light edits in the transcription of Yin’s interview for clarity purposes.
Should people take this initial draft as though it’s the actual decision to overturn Roe v. Wade?
I guess you would say that “Is it guaranteed that this will be the ultimate majority opinion?” And the answer is no, that when the judges, or justices in this case, take on a case after reading the briefs and oral argument, they’ll have a conference and sort of have a tentative vote. And based on that, either the chief justice or the most senior justice on the side that has the most votes will get to assign the tentative majority opinion, and then the same is true on the other side in terms of any dissents.
But once those are circulated, what can happen is that some justices who initially voted in the majority might think “Whoa, this is too strong of an opinion for me. This is not what I agreed to” or “I’m not comfortable with the language here.” And so what can happen is that you can lose some votes, either someone will defect to what was previously the dissenting side, which could become the majority if enough votes switch over. Or sometimes one of the justices, or maybe more than one, who were in majority will still vote the same outcome, but [with] a totally different and more narrow reasoning. And what happens in those cases is you end up with a very weird lineup where you’ll have … say, a three-to-four breakdown, where there’ll be three who have an extreme view on one side, two who are kind of in the middle who vote for the same outcome as the three and then the four original dissenters. When that happens, if we can determine that the two have the more narrow grounds, then that actually becomes the reasoning of the case because what we say is, well, we know that the three who had the more extreme view, they want to go farther, but they certainly would agree with at least what the two have said. So that gets us to five votes. But then, we have a more narrow ground for the ruling.
Let’s assume that it is what it appears to be, then it appears that we have five votes to … uphold Mississippi’s ban and in doing so, to reverse or strike down Roe and Casey. But what could happen is that of those five justices, maybe one or two of them, possibly, if persuaded by the chief justice, who’s not one of the five, writes a more narrow, what we call a concurrence to say, “Well, we don’t actually have to overrule Casey. Casey says that abortion restrictions are invalid if they present an undue burden on the woman’s right to choose. But if it’s not an undue burden, then the restriction is valid.” And so, a more narrow opinion might say, the Mississippi law is not an undue burden, and it still permits some abortions … If that were to draw one or more of the five, then that actually would become the controlling opinion and the result would be that the Mississippi law is upheld, but Casey is not struck down. However, other states could copy this particular restriction because there will be a ruling with a precedential value that would say, again, this type of hypothetical that yes, you can have a restriction for only the first 15 weeks. And you know, you could sort of see if that were the outcome … [then] other states would continue to sort of chip away.
So, they’ll be building a strategy, almost, based on the reaction of the justices?
Yes, and so if they were a more narrow ruling, that says 15 weeks is okay, then you might see another state say, “Well, let’s try 12 weeks. Let’s see what happens with 12 weeks.” I’ll give you this as an example, which is not to equate the two but just in terms of litigation strategy. This is how the NAACP successfully was able to overturn separate but equal is not by attacking it directly at first, but in each of the cases leading up to Brown v. Board of Education, they took on a particular state rule that claimed to be separate but equal but simply showed that it was not equal. Instead of overruling the original case, the Supreme Court was saying, “OK, well separate but equal is still the rule, but this is not equal.” So, this particular restriction can’t, or segregation, can’t stand until finally, you get to Brown v. Board of Education when you get the final death knell to separate but equal.
If a decision like this is made, can states like Oregon or Washington, or any state really, maintain their own laws allowing abortion?
If this draft opinion is what ultimately ends up being the ruling, then what it would say is that there is no constitutional right to an abortion, but that does not necessarily mean that a state cannot allow it. I guess one possibility is if the court were actually to say that the — whatever we’re gonna call the fetus, the embryo upon conception — is a life form that is entitled to the protection under the Constitution, that has its own constitutional rights, then theoretically, that might actually prevent a state from authorizing abortion. But if the ruling is simply what it appears to be, which is to say that the right to privacy does not extend to the right to choose, then it would withdraw from constitutional protection of abortion, and then it would leave it up to the states. Some states could have very permissive abortion laws, others will be able to restrict it as much as they wanted.
Now, just to complicate things, what you might end up with next is a federal law and this could go one of both ways. Probably not anyway because of the polarization and gridlock that we see, but … if we’re going to play hypotheticals, one hypothetical would be that, let’s say the Democrats retained control of the House and the Senate in the midterm elections. And so, they could pass or they could float a bill that would make it a federal statutory right to abortion. And because the supremacy clause says any state laws in conflict with federal laws have to give ground, as long as there’s a basis for the federal law that would supersede any conflicting state law. And usually, most federal laws are predicated on the idea that Congress can regulate interstate commerce, anything that has an impact on national commerce will work and so healthcare, for example, is predicated under the Commerce Clause and so a national abortion right would probably be the same.
Is that even possible with a filibuster?
That’s not my expertise. I’m just talking about the legal side of it. On the other hand, you know, suppose that in 2024, a Republican wins the White House and the Republicans control the House and the Senate. Then, again, assuming that Roe and Casey are struck down, you could see the opposite of a federal national abortion statute. You could see a federal anti-abortion statute, which again, will be predicated on the Commerce Clause. The constitutional issue is only one step in this, and then what could happen next would be dependent upon federal law as well. In the meantime, I think your question, particularly for local viewers, is what happens in Oregon? And what’s most likely, would be that nothing changes.
Should this decision or potential decision come as a surprise to people?
I have to say that the most surprising thing to me is that this even leaked in the first place. Now, I didn’t work for any Supreme Court justices, but I did work for three separate federal judges over three years after law school and one of the things that was emphasized over and over was the confidentiality of the chamber’s work. I’m not suggesting that it was a law clerk, but somebody in the Supreme Court … had to have leaked it, and so that’s just kind of surprising. I understand the significance and importance of the particular issue, but a lot of things the Supreme Court touches are very significant, and we’ve never really seen a leak like this, which is to say before the opinion has even been issued. What we have seen in books like “The Brethren” by Bob Woodward, and some others would be long after, there are revelations about the secrecy of deliberations.
But to your question about is this surprising? You know, partly, that’s a political question and partly it’s a litigation strategy question, which I guess to me, it would be a little bit surprising in that this was more like going for the home run instead of taking what would be a much easier walk or single, if you want to use a baseball analogy. I think from the arguments that were presented, during the oral argument on this case, and the reception of justices and just looking at the lineup of votes it seemed like you could expect a pretty easy upholding of the Mississippi law on the basis of it’s not an undue burden, which again, the chipping away but not outright overruling. But to go all out and say, “No, this is it. We’re doing it and we’re getting rid of the opinions right now.” I guess that seems a bit surprising, but I guess you know, you’ve got — if they do have five votes that are solid.