In an unprecedented and astonishing revelation, it appears that the US supreme court has provisionally voted to strike down the landmark Roe v. Wade ruling, which effectively enshrined the constitutional right to abortion in America.
Last night, Politico reported on an initial draft majority opinion written by Justice Samuel Alito, which they obtained through an anonymous source, and which was circulated in the court on 10 February. A final ruling is likely within the next two months.
The opinion overrules Roe v. Wade, the 1973 ruling that guaranteed federal constitutional protection of abortion rights, upholding the right of women in reproductive capacity to access abortion in the first trimester of their pregnancies nationwide.
A related ruling is overturned alongside Roe v Wade: the 1992 Planned Parenthood vs Casey court decision – which essentially endorsed Roe v. Wade by decreeing that states could not place “undue burden” on those seeking an abortion up to the point a foetus can survive outside the womb, broadly regarded as 24 weeks gestation. In other words, states are legally obliged to facilitate access to abortion at any stage of the unwanted pregnancy up to around 24 weeks.
Justice Samuel Alito’s draft opinion uses very strong language, almost deliberately inflammatory, including stark terms like “egregiously wrong”, “damaging consequences” and “deepened divisions”:
“Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”
The opinion draft rules that Roe v Wade constitutes an “abuse of judicial authority” as it has “imposed the same highly restrictive regime on the entire Nation,” indeed restraining states’ capacity to legislate on abortion rights independently.
Alito adds: “We hold that Roe and Casey must be overruled. It is time to heed the constitution and return the issue of abortion to the people’s elected representatives.”
If the opinion draft was to be adopted, as it is likely to be since the Supreme Court is in the hands of Republican majority judges headed by Judge Alito, the constitutional federal protection of abortion rights would fall, and it would be up to each federal state to legislate on abortion as they wish.
Initial doubts over the authenticity of the opinion draft were rejected as SCOTUSblog, a respected news and analysis site specialised in the Supreme Court of the United States, confirmed its authenticity in a tweet.
The document leaked to Politico is almost certainly an authentic draft opinion by J. Alito that reflects what he believes at least 5 members of the Court have voted to support — overruling Roe. But as Alito’s draft, it does not reflect the comments or reactions of other Justices.
— SCOTUSblog (@SCOTUSblog) May 3, 2022
This preliminary decision adds to a series of repeated attacks against abortion rights since Donald Trump’s election in 2016
Though they’ve always been a contentious topic in the US political landscape, abortion rights have become the target of particularly aggressive attacks by conservative lawmakers under Donald Trump’s presidency, which saw three appointments to the US supreme court lead to a 6-3 conservative majority. Four of the conservative justices – Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – voted with Alito in favour of Roe v Wade’s overruling.
This leaves one Republican judge out for the moment: Judge John Roberts. But even if he were to vote against it, the final outcome is not in doubt, given the numbers.
A copy of the Alito draft emerged in the press thanks to a person familiar with the court’s proceedings in the Mississippi case, which Impakter reported on last December as a pivotal issue whose outcome is likely to reshape abortion access in the US.
The Mississippi case, or Dobbs v Jackson Women’s Health Organisation, opposes Dr Thomas Dobbs, Mississippi’s health department director, to Jackson Women’s Health Organization, which is the last abortion clinic in Mississippi, also known as the Pink House. The contention focuses on whether the state of Mississippi can ban most abortions at and after 15 weeks of gestation despite Roe vs Wade and Casey laws.
If the Supreme Court’s decision to overturn Roe v. Wade is adopted, Mississippi’s ruling to ban abortion after 15 weeks of pregnancy will go into effect.
Already in September 2021, the Supreme Court had decided not to block a Texas law which banned nearly all abortions past six weeks of pregnancy – at which point most women do not know they are pregnant.
Those repeated blows against the Roe v.s Wade precedent, and the supreme court’s deliberate decision not to intervene and enforce them, have contributed to undermining their legitimacy and paved the way for their possibly imminent overruling.
In anticipation of such an event, 12 American states have issued so-called “trigger laws” which would go immediately into effect after Roe v. Wade is overturned, automatically prohibiting abortion to varying degrees. In total, and according to the Guttmacher Institute, 26 states are expected to make abortion illegal in various ways once Roe v. Wade falls.
Together, states considered hostile to abortion make up 58% of American women of reproductive age, or 40 million of the 72 million women between 15 and 49 years of age.
Media storm of heated reactions and protests
Politico’s publication of the opinion draft provoked an outpouring of reactions, particularly on social media and on the streets outside the supreme court where both pro-choice and anti-abortion activists are demonstrating.
Democrats condemned the ruling. House Speaker Nancy Pelosi and Senate Majority Leader Chuck Schumer issued a statement calling the likely abrogation of Roe v Wade an “abomination, one of the worst and most damaging decisions in modern history.”
They added: “If the report is accurate, the Supreme Court is poised to inflict the greatest restriction of rights in the past fifty years – not just on women but on all Americans.”
Roe v. Wade’s ruling is based on the right to privacy such as it is enshrined by the American Constitution’s 14th amendment – at least as commonly understood although Judge Alito makes the case that the right to abortion is not enshrined anywhere in the Constitution. Indeed, the leaked opinion draft rules the constitutional right to privacy is not broad enough to encompass a person’s right to abortion. Consequently, there are now fears that overturning Roe v Wade would lead to further attacks against other recently acquired rights that fell under the category of privacy, from same-sex marriage and sex to birth control and in vitro fertilization.
As we’ve warned, SCOTUS isn’t just coming for abortion – they’re coming for the right to privacy Roe rests on, which includes gay marriage + civil rights.
Manchin is blocking Congress codifying Roe. House has seemingly forgotten about Clarence Thomas. These 2 points must change https://t.co/5Isec0osV0
— Alexandria Ocasio-Cortez (@AOC) May 3, 2022
“I refuse to let my new granddaughter have to fight for the rights that generations have fought for & won, rights that she should be guaranteed,” wrote New York governor Kathy Hochul said in a tweet.
In anticipation of the mid-term elections, Christie Roberts, Democratic senatorial campaign executive director, said: “If this report is true, this Republican attack on abortion access, birth control and women’s health care has dramatically escalated the stakes of the 2022 election. At this critical moment, we must protect and expand Democrats’ Senate majority with the power to confirm or reject supreme court justices.”
Republicans, on the other hand, are jubilant. Republican senator Tom Cotton condemned the leak but celebrated the news: “The Supreme Court…must get to the bottom of the leak immediately using every investigative tool necessary. In the meantime, Roe was egregiously wrong from the beginning & I pray the court follows the Constitution & allows the states to once again protect unborn life.”
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What happens next?
The initial majority opinion draft was written following an oral argument and a preliminary vote held amongst court justices. The decision will only be final once it is officially published by the court.
At this stage, the overruling of Roe v Wade is a very likely outcome, but there is hope that the court may vote the other way in the coming months. However, if the Supreme Court does rule along the lines suggested in the draft, the fallout will be near-immediate and have huge consequences
The US Congress has never enshrined the right to terminate a pregnancy in law. Senator Bernie Sanders hence tweeted that the news called for urgent action to be taken: “Congress must pass legislation that codifies Roe v. Wade as the law of the land in this country NOW”.
President Biden has also called on Congress to enshrine abortion rights in law, but implied the outcome of the mid-term elections would be determinant in protecting abortions rights: “If the court does overturn Roe, it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose,” Mr. Biden said in a written statement. “And it will fall on voters to elect pro-choice officials this November. At the federal level, we will need more pro-choice senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law.”
If Roe v. Wade is overturned, the US would become one of only four countries to restrict abortion rights in nearly 30 years. As US health experts have warned a year prior to this event, overruling Roe v. Wade would have “catastrophic implications” for all American citizens and would constitute a violation of international human rights law, including the convention against torture, to which the US is a party.
It would also exacerbate the many ways in which the US already fails many pregnant people, as it appears maternal mortality rates in the US are the highest among industrialized countries, where the death ratio of Black mothers is more than two times higher than that of white women.
Since restricted access to abortion or outright criminalisation of the procedure inevitably leads to soaring rates of maternal death, the definitive overruling of Roe v. Wade would pose an ominous threat to American women’s health and overall future.
Editor’s Note: The opinions expressed here by Impakter.com columnists are their own, not those of Impakter.com — In the Featured Photo: Fighting for abortion rights at the Supreme Court on the day the draft opinion for Dobbs v. Jackson Women’s Health Organization was leaked. Featured Photo Credit: Miki Jourdan/Flickr.