The leaked draft opinion by Justice Alito in the Dobbs case foretells the end of Roe v. Wade’s protection of the right to choose to have an abortion for American women and is huge in the constitutional galaxy.

But it raises many side questions which are intriguing to us con law nerds and I’d like the share two with you:

First. Almost immediately after the leak, protesters appeared in the snazzy neighborhoods where conservative justices reside. Immediately anti-Roe advocates began calling for the enforcement of laws like 18 USC 1507, criminalizing conduct focused on the homes of judges.  It turns out that about four days before pro-choice demonstrators appeared in Alito’s neighborhood near Alexandria, Virginia, demonstrators favoring Alito and the draft had walked the same quiet, genteel streets.

Could a law which could only be enforced against the pro-Roe folks possibly be valid if it allowed content-based discrimination under the First Amendment? It would seem that all of the “time, place and manner” rules applicable under the doctrines of free expression and assembly can only be applied if the content neutrality dictates are first applied.

Freedom of assembly and expression are central to our basic freedoms, as frightened female patients trying to enter clinics and having to negotiate rows of sign-waving, bull horn holding protesters were reminded for the half century since Roe.

For true Scotus junkies, a useful starting place for reviewing the case law is Justice Stevens’ clear opinion in Watchtower Bible & Tract Society v. Sutton, 536 U.S. 150 (2002).

Second.  Assume Roe is reversed and states are free to limit access to abortion, are Indian reservations free to have wholly different rules even if those enclaves are within the geographic boundaries of a state?

Several years (2006) before the Dobbs draft was in the headlines, the president of the Ogalala Sioux Tribe suggested that a reproductive health clinic which could perform abortions be established on tribal land. For her “creativity” the tribal council impeached her and outlawed all abortions (LA Times, July 1, 2006).

But if a clinic were established on tribal land, it would appear that a state could not interfere, except: a) it might yank a non-indigenous medic’s license; b) convince insurers not to cover anyone who worked there; c) take action against any person or organization outside of tribal land offering assistance to any patient seeking services.

Sen. Mitch McConnell has vowed that when the GOP takes control of Congress, he’ll see to it that there is a federal law outlawing abortions (even though the standard view of conservatives is that abortion should only be regulated by the states, and the national government should “butt out.”) So, even if some Indian Nation allowed abortions on its land would the McConnell ban take precedence everywhere in the country?

Richard Shugrue is a professor emeritus at the Creighton University School of Law and a columnist for The Daily Record.