June 2, 2022
Issue: Religious Freedom
Q&A: SCOTUS’s Abortion Draft and American Muslims
Muslim Advocates Q&A: What does the leaked Dobbs v. Jackson opinion mean for American Muslims?
Yes, abortion is still legal because the Dobbs leaked opinion isn’t final, so Roe is still good law. That said, we can expect a final decision in Dobbs — likely similar to the leaked draft — by the end of June 2022. While it bears remembering that even now, with Roe still the law, abortion is often inaccessible due to practical obstacles imposed by many state legislatures. Nonetheless, the Dobbs decision is likely to have massive impacts in the coming years.
While abortion is just the spear-tip of the changes Dobbs will make, if the draft Dobbs opinion is an indication of the final opinion, Dobbs will strip federal protections for abortion, leaving the legality of abortion post-Dobbs to state legislatures. We can expect strong policy pushes in many states to shrink or expand legal abortion access in the coming legislative sessions. These maps and charts show current state laws authorizing or criminalizing abortion access. At the moment, twenty-two states (AL, AR, AZ, GA, IA, ID, KY, LA, MI, MS, MO, NC, ND, OH, OK, SC, SD, TN, TX, UT, WI, WV, WY) currently restrict abortion access and have laws criminalizing abortions, in whole or part, which would go into effect if Roe is overturned. One state legislature (Kansas) has passed a non-binding resolution to prohibit abortions to the maximum extent allowed under law. At the other end of the spectrum, sixteen states and the District of Columbia protect abortion access. 
Concerningly, yes. Abortion is just the spear-tip of the changes Dobbs will make. The rights specifically mentioned in the Constitution (often called “enumerated rights”) — like free speech, press and exercise of religion — should not be affected. But the Dobbs draft opinion calls into question any rights that are not specifically mentioned in the Constitution. This includes including the right to marry someone of a different race without being jailed, the right to raise one’s children according to one’s own values, the right not to be sterilized against one’s will, the right to keep one’s medical information private, the right for unmarried sex not to be criminalized, the right to use contraception, the right to marry someone of the same sex, and the right to have an abortion before fetal viability. 
In other words, the rights at risk are any “unenumerated” rights that this Court decides are implied — but not specifically mentioned — in the constitutional text. Specifically, all of the rights that the Court has previously found to be part of our constitutionally protected “liberty” could be overturned.
Justice Alito’s draft opinion indicates that Court will recognize an unenumerated right only if it is “deeply rooted in [our] history and tradition” and “essential to our nation’s ‘scheme of ordered liberty.’”  The use of the “deeply rooted in history” concept is problematic for many reasons, one of which is that our society is very different now than it was when the Constitution was written.
That is, we strongly value many things today—such as racial and gender equality—that cannot be said to be “deeply rooted in history” and many believe that fact should not be an obstacle to recognizing an unenumerated right that has great contemporary value. Nevertheless, following the reasoning in the Dobbs draft opinion, all unenumerated rights have to be “rooted in history” in order for the Court to recognize them. 
If the final Dobbs opinion follows the reasoning of the draft opinion, it could threaten any constitutional rights that are not “deeply rooted in U.S. history.” That should concern any American who values liberties such as the right to contraception, the right to teach your children a language of your choice, and the right to marry whomever you want.
For American Muslims, Justice Alito’s “deeply rooted” test could be devastating because the fair and equal treatment of Muslims in our society is anything but “deeply rooted.” As for all marginalized communities, full inclusion of Muslims in American society is an unfinished project that has taken centuries of education, struggle and consciousness-raising just to get started.
Justice Alito’s draft opinion looks for constitutional rights in a historical time when rich, white, Christian men held the full panoply of essential rights (such as bodily integrity, fair wages and voting rights) while they enslaved, oppressed, and conquered others. If Alito’s view of “deeply rooted in history” dictates our constitutional rights today, American society could quickly backslide into an era many of us thought was behind us.
But even beyond all the unenumerated rights that could be threatened by a Dobbs final opinion, there appears to be an alarming tolerance for state enshrinement of Christian doctrine by today’s Supreme Court. The alignment of state law with particular Christian beliefs seems not to offend the current Court’s understanding of the Establishment Clause of the Constitution, which prohibits states and the federal government from “establishing” a religion. By defining life as beginning at conception, the Mississippi law at issue in Dobbs adopts the religious doctrine of one minority religious community, yet that position apparently does not alarm the Supreme Court. Muslim Advocates and representatives of other minority religious communities sounded the alarm that the Mississippi law presents an Establishment Clause problem in an amicus brief and an open letter. Nevertheless, the Court did not address this issue in its draft opinion (and presumably will not do so in the final opinion).
The Court’s trend to tolerate the Christianization of American law should concern all Americans, but it is especially dangerous to those belonging to minority religions like Islam. How far the Court will go down this path remains a mystery, but lived experiences of anti-Muslim government acts like the Muslim Ban and state adoption of anti-sharia legislation raise legitimate fears about misrepresentations of Muslims and Islam. When such misrepresentation is combined with state power, the results can be devastating to the civil and human rights of all Muslims in this country.
To see how far this Court will tolerate the Christianization of American law, we urge you to watch upcoming decisions such as 303 Creative v. Elenis, a case the Court will hear next fall, that will decide whether conservative Christians are exempted from complying with anti-discrimination laws.
We can join together with others who believe that our rights today should not depend on what the Founders thought was important over two centuries ago. We at Muslim Advocates will continue our fight for respect and inclusion of American Muslims and all marginalized communities.
We would love to hear — and highlight — what you are doing to protect and strengthen respect in the United States for a pluralistic, multi-racial, and multi-faith American polity. It takes all of us working together, and talking about why all of us matter, to push this country toward a “more perfect union” of which we can all be proud.
 The numbers do not add up to 50 because some states have no laws specifically addressing abortion. The source maps differ somewhat due to the journalists’ sources’ differing category definitions.
 A partial list of holdings called into question under Dobbs’ reasoning includes:
- parental and familial rights to:
- send children to a religious school (Pierce v. Society of Sisters, 268 U.S. 510 (1925));
- decide on children’s instruction (Meyer v. Nebraska, 262 U.S. 390 (1937));
- marry a person of a different race without criminal punishment (Loving v. Virginia, 388 U. S. 1 (1967));
- marriage regardless of partner’s sex (Obergefell v. Hodges, 576 U. 8. 644 (2015)).
- bodily autonomy and privacy to:
- not to be sterilized against one’s will (Skinner v. Oklahoma, 316 U. S. 535 (1942);
- access contraception (Griswold v. Connecticut, 381 U. S. 479 (1965) & Kisenstadt v. Baird, 405 USS. 438 (1972));
- shield personal and medical information from disclosure (Whalen v. Roe, 429 U.S. 589, 599-600 (1977);
- engage in intimate sexual conduct without governmental penalty (Lawrence v. Texas, 539 U. S. 558 (2003)).
As you can see from the opinion dates, none of these rights are safely “deeply rooted” in the period that the Court majority finds meaningful in Dobbs (pre-colonial through late 19th century).
 The use of the “deeply rooted in history” concept is the test that some Justices have used to figure out what unenumerated rights should be recognized by the Court. See Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (rejecting challenge to Washington’s ban on assisted suicides). So far, this is not a test that has been adopted by a majority of the Court to reverse a right, but after the Dobbs opinion is issued, it may be the law of the land. Many have critiqued this test as problematic for many reasons, one of which is that our society is very different now than it was when the Constitution was written.
 Justice Alito states that he expects some unenumerated rights will survive this analysis, but the logic of his opinion provides no real distinction between abortion and other rights. Once the Court opens the pandora’s box of unenumerated rights’ need for deep historical roots for continued recognition, many evils we thought contained can be re-released at the Court’s whim.