Draft SCOTUS Abortion Ruling Argues That Letting Roe Stand Could Lead To Drug Legalization

A controversial draft opinion from the U.S. Supreme Court concerning abortion rights seems to argue in a little-noticed passage that the constitutional justification for Roe v. Wade is so broad that it could theoretically be interpreted in a way that invalidates drug criminalization.

While the draft majority opinion that was leaked this week has not been formally submitted and could be subject to changes before it is finalized, Associate Justice Samuel Alito’s argument in favor of overturning the half-century-old precedent on abortion rights also briefly touched on drug policy.

“These attempts to justify abortion through appeals to a broader right to autonomy and to define one’s ‘concept of existence’ prove too much,” the opinion states. “Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like.”

“None of these rights has any claim to being deeply rooted in history,” Alito wrote in the draft, which was first revealed by Politico.

What the justice seems to be saying is that, if Roe v. Wade were to stand, it could invite further legal challenges over issues where government policy is seen as interfering with the autonomy of individuals, potentially rendering it unconstitutional to prohibit people from using illicit drugs, for example.

Alex Kreit, a legal expert who specializes in drug policy and teaches at Northern Kentucky University, told Marijuana Moment that the argument isn’t without precedent, though it hasn’t had much success in the courts to date.

People “have made the argument that there is a fundament right to use drugs,” Kreit said, but he doesn’t believe that “any have had any promise outside of the context of medical uses.”

There have been instances where courts have been faced with challenges concerning the right of patient to use currently prohibited substances like marijuana (cases that have not been successful to date), but what’s unique about the Alito interpretation is that he’s making a more nuanced point about the concept of autonomy under the Constitution.

Douglas Berman, a law professor at Ohio State University, told Marijuana Moment that he has “long thought there could be potent arguments for constitutionally protected rights to use a drug for health need if there are no externalities.”

“Such arguments have never gotten any traction in courts, but I agree with the notion that taking privacy/autonomy rights serious could get you there,” he said.

Berman cited a 1975 Alaska Supreme Court case as a close example of how the judiciary could approach the intersection of privacy and drug policy. In that case, the court determined that personal possession of small amounts of cannabis by adults in their own homes is protected under the state Constitution.

There was a separate challenge that reached the U.S. Supreme Court concerning California’s medical cannabis program and the rights of patients to grow and use their own marijuana despite federal prohibition, but that case focused on the Commerce Clause of the Constitution, rather than the notion of personal autonomy.

Of course, the draft opinion in the current abortion case is not specifically about drug policy, nor is it immediately clear what kind of implications Alito’s short aside on the issue might have for future challenges.

Nonetheless, the opinion—if it’s ultimately ruled on with that language intact—does raise questions about how the autonomy debate could play out with respect to federal drug criminalization.

Meanwhile, the Supreme Court is separately being asked to weigh in on whether federal law protects employers who choose not to cover medical marijuana costs for workers injured on the job, even in states that seek to require it. State courts have reached different conclusions on the question, but now the nation’s top court is asking the top Justice Department lawyer to weigh in.

Empire State NORML and two other groups—the New York City Cannabis Industry Association and the Hudson Valley Cannabis Industry Association—submitted amici curiae briefs urging the court to hear the case in December.

Meanwhile, even one of the most conservative U.S. Supreme Court justices, Clarence Thomas, denounced the federal government’s inconsistent approach to marijuana policy last year, and he suggested that outright national prohibition may actually be unconstitutional.

At the time, the court declined to take up a case related to an Internal Revenue Service investigation into tax deductions claimed by a Colorado marijuana dispensary. But Thomas issued a statement that more broadly addressed the federal-state marijuana disconnect.

In 2020, justices declined to hear a case challenging the constitutionality of federal marijuana prohibition.

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