Kelsey Vlamis
Sun, May 22, 2022
Pro-choice signs hang on a police barricade at the U.S. Supreme Court Building in Washington, DC, on May 3, 2022.Anna Moneymaker/Getty Images
A leaked draft opinion showed the Supreme Court is poised to overturn Roe v. Wade this summer.
A former federal prosecutor said it's rare for the court to overturn precedent to limit civil rights.
Experts worry the court's reasoning in the draft opinion could be used to overturn other rights.
According to a leaked draft opinion, the Supreme Court is likely to overturn Roe v. Wade and make history in a number of ways — including by overturning itself to limit the rights of Americans.
"Overturning Roe v. Wade would be such a significant decision because it would be the first time in the history of the Constitution that precedent would be overturned to limit civil rights, not expand them," according to Neama Rahmani, the president of West Coast Trial Lawyers and a former federal prosecutor.
The draft opinion indicates the court seems poised to overturn the 1973 landmark decision that enshrined the right to an abortion. Written by Justice Samuel Alito, the draft was unflinching in its condemnation of the reasoning behind Roe, prompting concerns it could help set the stage for additional rights to be overturned.
For instance, Rahmani said in an email to Insider that the Supreme Court's reasoning to overturn Roe could be extended to erode Miranda rights, which require law enforcement to inform a criminal suspect of their right to remain silent.
"There is no requirement in the Constitution that law enforcement must inform you of your rights, which is essentially what the 1966 Miranda decision provided," Rahmani said. "Miranda is something the court read into the Constitution."
Miranda v. Arizona was an example of the court overturning precedent to expand civil rights. The 1966 position dismissed two prior court rulings and held that law enforcement violated Ernesto Miranda's rights by not informing him of his right to remain silent and request an attorney.
Other prominent cases of the Supreme Court overturning itself have resulted in an expansion of civil rights.
In 1954, Brown v. Board of Education overturned the infamous 1896 decision in Plessy v. Ferguson, which allowed "separate but equal" segregation laws. By overturning the precedent set by Plessy, Brown granted additional rights to Black Americans, namely the right to attend schools that previously were limited to white students.
More recently, Obergefell v. Hodges in 2015 guaranteed the right for couples to marry regardless of their sex, overturning the 1972 decision in Baker v. Nelson and extending the constitutional right to marry to same-sex couples.
"Instead of using the Constitution to expand rights to the citizens of this country, now the conservative right is starting to limit the rights of people in this country," Doron Kalir, a professor at Cleveland-Marshall College of Law, told Insider.
The Supreme Court currently has a 6-3 conservative majority, with three justices nominated by former President Donald Trump, who campaigned on selecting judges that would overturn Roe.
Kalir said landmark decisions like Roe and Obergefell extended rights to those who wanted them, adding Roe never forced anyone to get or perform an abortion, and Obergefell never forced someone to marry someone of the same sex or perform a same-sex marriage.
The language in the draft opinion that would overturn Roe was harsh and sweeping, with Alito calling the decision "egregiously wrong from the start." Kalir said it indicates the court may be open to limiting a whole host of rights that pertain to the right to privacy and the sanctity of the home.
"Can you imagine a police agent knocking on your door and asking if you used contraception?" Kalir said, adding that in a post-Roe world, investigating criminalized abortion could involve police searching homes or internet data for evidence that a person performed or assisted in an abortion.
"This may really be the harbinger of horrible things to come," he said.
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