What the leaked draft Supreme Court opinion on Roe v. Wade means for Missouri
The leaked Supreme court opinion in the Dobbs v. Jackson Women's Health Organization published Monday night would overturn Roe v. Wade and nearly 50 years of legal precedent.
While the draft is not final, if — as it suggests — a majority of justices support overturning Roe, that has major implications for states looking to ban abortion, including Missouri. University of Missouri Law School professor Rigel Oliveri joined the Health & Wealth Desk to discuss some of the opinion’s potential consequences.
Health & Wealth Desk: A lot of people have been expecting the court to overturn or severely limit Roe; how do you gauge the reaction we've seen since the opinion leaked?
Rigel Oliveri: A lot of people are surprised at the leak. That's pretty — I don't want to call it unprecedented — but that was pretty surprising. Ordinarily, opinions don’t leak, certainly opinions like this. I think all of us were preparing ourselves to get the opinion sometime in June, so this is unusual. As for the substance of the leaked opinion, no it’s not surprising. I think most people, given the composition of the court ... their backgrounds and beliefs and what took place in the oral arguments made pretty clear the court was leaning in the direction it appears to be going in now.
H&W: Can you give a sense of how far-reaching the draft opinion is, or some of the implications that go beyond reproductive rights?
Oliveri: First I want to make clear the opinion says at a couple different points that it is only limited to the issue of of abortion, not even other reproductive rights, but just specifically abortion. However, the reasoning of the opinion, the critique that it levels at Roe and Casey, would apply to any of the other opinions that the court has handed down over the decade that safeguard other rights that can be viewed as rights of privacy, rights of personal liberty and autonomy. The critiques that it levels at those opinions, are the same and could be leveled at just about any of the other opinions that the court has handed down in recent decades that protect things like contraceptive use, or other personal privacy rights.
H&W: Missouri passed a law in 2019 that would ban abortions in the state if Roe is overturned. What would the immediate local impact be of an opinion to that effect?
Oliveri: So the trigger law you mentioned would take effect, which would ban all abortions in Missouri except for in cases of Medical emergency, which is not clearly defined. And it would make the performing of an abortion a felony. In essence, it would ban abortion across Missouri. Which, already abortion has been regulated to such an extent in the state that there’s only one clinic that’s even operating now in St. Louis. But that clinic would no longer be able to perform abortions, and of course no new clinics or providers could start.
H&W: Would this opinion in your view open the door to further restrictions on people seeking abortions? For example, people traveling to another state to receive one.
Oliveri: I think there’s one thing that I can say with certainty that no state legislature can do, and that is they cannot prohibit people from traveling to other states to obtain an abortion if it’s legal in those states. We do have a constitutionally recognized right to travel, and so people in the United States are allowed to freely go from one state to another, and that includes doing things in the destination state that might not be legal in your state.
So if abortion remains legal in illinois for example, no Missouri couldn’t prohibit people from going to Illinois in order to obtain an abortion. That would be prohibiting someone from crossing state lines, and we don’t do that in this country.
H&W: Is there anything else about the draft opinion you think is worth mentioning?
Oliveri: This really represents the first time the court has articulated something as a fundamental right and then taken it back. The court reverses itself all the time — it’s not incredibly common, but it's something the court is clearly willing to do if it thinks it got something wrong. But this is the first time that I can think of that the court has gone through the trouble of articulating something — elective abortions as a fundamental right — and for the first time it looks like the court is going to reverse course on something like that. Usually, rights operate kind of in one direction, they're like a one-way ratchet. Once you have them, you have them. And this is the first time that I can think of that the court is now trying to take away that.