"They knew this would cause an uproar": Phoenix constitutional law attorney analyzes impact of seismic SCOTUS leak

Jeremy Beren

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By Jeremy Beren / NewsBreak Pinal County, AZ

(Phoenix) — The fallout from a leaked U.S. Supreme Court draft opinion suggesting that the 1973 Roe v. Wade decision will be overturned in June continues to reverberate around the country, with Arizona expected to be among the most-severely impacted states.

According to one outlet, an abortion ban taking effect in Arizona would correspond with a 40 percent drop in the abortion rate. New restrictions on reproductive rights would affect millions in Maricopa and Pinal Counties — the estimate points to more than 1.3 million residents and 94 percent of women between the ages of 15 and 44. The average distance to the nearest clinic for an Arizona woman seeking an abortion would grow to 247 miles — that distance now is roughly 17 miles, on average.

Arizona is one of several states with "trigger laws" or a pre-Roe legal abortion ban that would go into effect if a decision like Roe v. Wade is overturned through another case the Supreme Court is hearing — Dobbs v. Jackson Women's Health Organization. The relevant laws on the books in Arizona would take effect immediately once the Dobbs ruling is made, outlawing legal abortion. These call for two to five years in prison for any individual, whether or not they are a licensed physician, who helps a woman obtain an abortion by any means.

One Phoenix attorney anticipates legal challenges if and when these laws become enforceable.

"Criminal laws have to narrowly describe the conduct they're criminalizing so that people are put on notice — if I do 'X,' I'm going to get 'Y' punishment. That would need to be litigated," Emily Ward explained in an interview with NewsBreak. "But the day that the official Dobbs decision comes down, this trigger law would make (abortion) illegal."

Ward practices business litigation and constitutional law at Fennemore Craig, a firm with several offices in Arizona, California, Colorado, and Nevada. In addition, she is a former Arizona Supreme Court clerk who also worked at a federal district court in Texas prior to starting at Fennemore.

"I think that (the justices) are probably saddened by something like this happening," Ward said when asked about the possible internal reaction to Justice Samuel Alito's 98-page draft opinion becoming publicly available. "I think they thought — rightly or wrongly, I know a lot of people take issue with this — but they personally believe that they are not political animals, and that the court is above reproach. I think the leak is a wake-up call for them."

But Ward further stated despite the public outcry that the leak has provoked, it is highly unlikely that Justice Alito or the Supreme Court's other conservative justices will reverse course — though the final opinion, once issued, may feature a softened tone from the draft opinion dated Feb. 10.

"The short answer is 'no,' this leak is not going to have any effect," Ward said. "They knew that this was going to cause an uproar, they're not obtuse."

When discussing the content of Alito's draft opinion itself, Ward dissected how Alito came to the conclusion that Roe v. Wade should ultimately be struck down. She explained that Alito and the conservative majority, interpreting the decision through an originalist lens, felt that Roe had been on shaky legal ground from the beginning.

"Of course, abortion isn't in the text of the Constitution ... the Roe court looked at the Bill of Rights and looked at the different rights that are enumerated in it, and (the Roe court) thought 'there must be some kind of right to privacy here, we have all these other rights, there must be this apparition of a right to privacy,'" Ward said. "I think that Justice Alito now looks at that and says, 'that's not a thing. Our job as judges is to interpret text.' And given that that text does not exist, it was on a collision course with the Constitution from day one."

But Ward does not expect a domino effect from Alito's draft opinion that would open the door to strike down other cases that have dealt with American's right to privacy. This interpretation differs from one held by other attorneys and legal analysts, which maintains that overturning the right to abortion would pave a path for challenges to other settled issues like same-sex marriage.

"Justice Alito anticipated this, and he said in his draft opinion 'to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right,'" she said.

Still, Ward could not recall another instance where the U.S. Supreme Court has decided to circumscribe or take away rights rather than expand them. If Chief Justice John Roberts' reaction is any predictor, the disclosure of the draft opinion to Politico earlier this week has opened serious fissures within the country's highest court.

"I can't imagine what it's like to work there right now," Ward said. "You're going into work, and everyone is suspicious of each other ... that entire (investigation) process is going to create a lot of mistrust among the justices and the staff."

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Jeremy is a freelance journalist covering health, energy, labor, and local politics. Reach him at jeremy.beren@newsbreak.com.

Phoenix, AZ

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