If it reflects the court’s final decision, the leaked draft U.S. Supreme Court opinion in Dobbs v. Jackson Women’s Health Organization has both important short-term consequences and dire long-term implications for federalism. In the short term states can rely on their existing statutory and state constitutional provisions to fill the void left if Dobbs abrogates federal constitutional protection for abortion. But the reasoning in Dobbs can also be applied to void other federal liberty protections such as contraception and interracial and same-sex marriage.
The draft disclaims such an intent—yet its reasoning undercuts those rights because they rely on the same autonomy privacy analysis that Dobbs rejects. Worse, Congress can fill that void with legislation that could ban those rights nationwide, which under the Commerce Clause and the Supremacy Clause could invalidate even state constitutional protections for those rights. So in the short term blue states might circle the wagons around their state constitutions, but in the long term even that defense might crumble.
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