Overturning Roe v. Wade could impact ‘other civil rights and other intimate relationships,’ says BU law professor

Updated at 7 p.m. May 5

Yesterday, Politico released a report detailing a draft opinion from Supreme Court Justice Samuel Alito that suggests the court will overturn Roe v Wade later this year. Nicole Huberfeld, professor at Boston University School of Law and School of Public Health joined GBH Morning Edition hosts Paris Alston and Jeremy Siegel to discuss the report and what it means for abortion access. This transcript has been edited for clarity and length.

Jeremy Siegel: Thanks for joining us. So to be clear, here in Massachusetts, we have the state level ROE Act, which aims to codify abortion rights. But for someone who is waking up here in Massachusetts or other states in New England and wondering what a possible ruling on Roe could mean for them, how are you making sense of that this morning?

Nicole Huberfeld: Well, it's a great question, because if the court does, in fact, overrule Roe v. Wade, which to be clear, it has not done yet, that would mean that where you live very much dictates what kind of access to healthcare you have. And as of right now, about half of states have laws that could be used to restrict access to abortion. And Massachusetts, as you noted, is not one of them. Massachusetts has a ROE Act, which makes it so that by state law, people may access abortion up to the point of viability around 24 weeks. But that doesn't mean that every state will look like that. And so what is likely to happen is that people will need to travel across state lines in order to try to access abortion when they need that kind of health care.

Paris Alston: I'm thinking about our neighbors in New Hampshire, for instance, Nicole, where just at the beginning of this year, it became illegal to terminate a pregnancy after 24 weeks and every person seeking an abortion had to undergo an ultrasound. So what would that mean for abortion or health care providers in general in Massachusetts?

Huberfeld: What it's likely to mean is that Massachusetts will have more people crossing into the state to access healthcare, which is a phenomenon that already occurs because of our generous universal health care system. The Massachusetts law is slightly more generous than the New Hampshire law. New Hampshire's law, relative to other states like Texas, Oklahoma and Florida, is actually still fairly lenient. And so in this region, people will have better access to care than they will in other regions of the country. But for Massachusetts specifically, it means that healthcare providers in this state are more likely to see more patients needing this kind of care.

Siegel: Let's talk a little bit more about the report itself. It has not yet been confirmed, but appears to be genuine, the result of some sort of leak from the court, which is something that happens rarely, if ever. As someone who is an expert on this type of law, what are you thinking about what this report's release means? What a potential leak from the court means and the integrity of the Supreme Court?

Huberfeld: Great question. So as you noted, this kind of leak is extremely rare. I wouldn't go so far as to say unique, but extremely rare. And I think there are different ways to think about what could have happened here. I think one camp is someone who is concerned about this decision, leaked it in the hopes that there would be protests that might sway some of the justices or in the hopes that maybe, let's say, Chief Justice Roberts would like a middle ground. Maybe one of the justices in the majority who signed on with Justice Alito might join some kind of middle ground with Chief Justice Roberts, who tends to be more of an institutionalist and incrementalist. And if that were the case, that would render this decision a plurality. And if it's a plurality, what that means is that Alito's opinion would only apply to this particular case. It wouldn't have the effect of overruling Roe v. Wade writ large. It would just matter for the Dobbs case in Mississippi.

There's another camp of thinking, which is that someone who is in the majority, whether a justice or one of their clerks, leaked the opinion to try to solidify the majority, because if you think that the justices are political actors, then it's possible this was a way to ensure that none of them defect, if you will, from a five-person majority, because the pressure to maintain that majority would be pretty substantial for those who want Roe to be overturned. So I think there's a few different ways to think about what's happening with this leak. I think that people have been concerned about the legitimacy of the court and its institutional power for a while. We could look to a number of opinions that have made that true, including, of course, Bush v. Gore, and the idea that the court basically gave away the presidential election in that election. So I think that the court does have an institutional integrity issue and this won't help.

Alston: So, Nicole, whichever way that the person who leaked this might have been trying to push things, it's in public now. People are reacting very strongly on either side. Could that influence the justices at all?

Huberfeld: I think it's hard to say. I think the justices would say that public opinion and politics don't matter. When you listen to the justices talk about the work of the court, they say that it is slow, that it is intellectual, that it is measured. But I don't think that the public has that perception of the court. And it's hard to say what will happen next. I mean, we can certainly point to the recent opinion of NFIB v. Sebelius, which was the first decision to test the waters on the Affordable Care Act. And by most accounts, there were shifts in the opinion before it was issued at the end of the term that ultimately upheld most of the Affordable Care Act. So it is possible there will be shifts before this opinion is issued.

Siegel: Nicole, what else could a Roe decision mean if Roe is overturned? Is there anything else at stake besides abortion access?

Huberfeld: Absolutely. Roe v. Wade is part of a web of rights related to intimate relationships. And though this draft opinion is careful to say abortion is different because it involves fetal life — in reality, if you pull out the Roe thread, then the rest of the patchwork starts to unravel. Because this is also related to things like the right to procreate, access to contraception, intimate relationships, like the right to marry. And so I think it's fair to say that this history and tradition test that Justice Alito is trying to push in the opinion could have implications for other civil rights and other intimate relationships.

This post was updated to correct the spelling of Nicole Huberfeld's last name.