BOISE, Idaho — With the leak of a Supreme Court draft opinion on abortion to Politico, University of Idaho College of Law professor and constitutional law expert Shaakirrah Sanders says it's important to note the lack of context we have surrounding it.
“It very well could be that every judge has a draft opinion that is circulating, and this is the only one that was issued. It could be that Alito has been chosen to write either a majority opinion, a concurring opinion, or a dissenting opinion,” Sanders said.
The leaked opinion, which the Supreme Court has now verified as authentic, indicates a major change in abortion law. However, Sanders said it’s unclear if this opinion drafted in February still captures the feelings of the court.
“We don't know whether there are draft concurring opinions, draft dissenting opinions, and that could be very important in terms of counting up the votes. You need five votes on an opinion, and so you can have one vote on one opinion, two more votes on another opinion, another several votes on a dissent,” Sanders said.
Sanders explained it is entirely possible that the draft opinion could frame a minority opinion, rather than the majority. It’s just too early to know.
“We don't know whether this draft opinion came before some type of straw poll from the court or any other official vote among the justices on this particular issue,” Sanders said.
Despite unknowns, many see the draft as a foreshadow to the reversal of Roe v. Wade later this summer. If that happens, Idaho is one of 13 states that have a abortion laws change quickly.
“If Roe v. Wade is overturned by the U.S. Supreme Court, then under Idaho law, will become a new law that officially governs the right to terminate a pregnancy,” Sanders said.
Idaho Gov. Brad Little signed Senate Bill 1385 into law back in 2020. Under that law, if Roe v. Wade is reversed, abortions become a crime in Idaho 30 days after the official opinion is published by the Supreme Court. The law reads, “Criminal abortion shall be a felony punishable by a sentence of imprisonment of no less than two (2) years and no more than (5) years in prison.”
There are some exceptions for cases of rape and incest.
Sanders said it’s important to remember this is not a one or the other outcome. There are several things the Supreme Court could do.
“A final opinion could keep part of Roe v. Wade, but significantly reduce it. A final opinion could say there is no right to terminate a pregnancy. States do whatever you want or again, there is no right to terminate a pregnancy in states you can't do what you want on this issue,” Sanders said.
Sanders' focus areas as a legal scholar include individual liberty and equal protection. She said reversing Roe v. Wade would be unique in the sense that it would take away rights instead of expand them.
“You rarely see it. It is very hard for me to even think of an example of where the U.S. Supreme Court has first said, 'OK, there is a right to X and then has later said there's no longer that right.' Now, of course, there was the right to own other people, but that was changed by U.S. constitutional amendment not by the U.S. Supreme Court. And how the court goes about restricting rights, I think will be important for future cases. Should the court retract on Roe v. Wade,” Sanders said.
Sanders also said the leaked documents could sow distrust in the highest court.
“Having leaked opinions like this does not help the court and its goal to be seen as apolitical and so, again, how the court reacts and how Congress reacts, I think could be of significant importance,” Sanders said.
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