A leaked draft of a US Supreme Court majority opinion indicates that the high court is preparing to overturn Roe v. Wade, the 1973 decision that established a constitutional right to abortion.
Oral arguments in Dobbs v. Jackson Women’s Health Organization were heard in December. A formal decision in the case, which hinges on the constitutionality of a Mississippi abortion law, isn’t expected until June, when the current judicial term ends.
In the draft, first reported by Politico on Monday evening, Associate Justice Samuel Alito contends that the Constitution “makes no reference to abortion and no such right is implicitly protected by any constitutional provision.”
The opinion in Roe v. Wade rested, in part, on the due process clause of the Constitution’s 14th Amendment, which has been used to strike down legislation restricting rights not explicitly mentioned in the Constitution, like the right to privacy.
Dissenting opinions in the Dobbs case weren’t included in the leak.
The draft, which Chief Justice John Roberts confirmed is authentic, isn’t final. The justices still have an opportunity to change their minds and the text. Until an official decision is issued, abortion remains legal in the US.
Still, it suggests that five decades of a woman’s right to choose will soon be overturned, radically redefining reproductive rights in the US.
Here’s what the case is about and what the opinion could mean for abortion rights in the US.
What is the Mississippi abortion law?
Dobbs v. Jackson Women’s Health Organization addresses the constitutionality of a 2018 Mississippi law banning almost all abortions after the first 15 weeks of pregnancy.
The Gestational Age Act, as the measure is known, makes exceptions in cases of a medical emergency or severe fetal abnormality, but not for pregnancies resulting from rape or incest.
A volunteer escorts patients into the Jackson Women’s Health Organization, the last clinic in Mississippi offering abortion services.
Brendan Smialowski/AFP
After signing it, Republican Gov. Phil Bryant said the law would help ensure Mississippi is “the safest place in America for an unborn child.”
Jackson Women’s Health Organization, the last state-licensed abortion clinic in Mississippi, challenged the measure almost immediately.
In November 2018, the US District Court for the Southern District of Mississippi ruled in the clinic’s favor and, a little more than a year later, the Fifth Circuit unanimously upheld the lower court’s decision.
“States may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman’s right,” the Fifth Circuit said, “but they may not ban abortions.”
In October 2021, Mississippi brought the case before the Supreme Court, which agreed to hear arguments.
What is Roe v. Wade?
Roe v. Wade is a landmark Supreme Court ruling that determined a woman has a constitutional right to choose to have an abortion without undue government interference.
A pregnant single woman, using the pseudonym Jane Roe, brought a class action suit challenging a Texas law banning abortion except in cases in which the mother’s life was at risk.
If the Supreme Court strikes down Roe v. Wade, regulation of abortion will revert to individual states.
Cyndi Monaghan
In an opinion written by Justice Harry Blackmun, the court determined that laws like the Texas ban violated, among other rights, the due process clause of the 14th Amendment, which protects “the right to privacy, including a woman’s qualified right to terminate her pregnancy.”
Later cases affirmed the right to an abortion within the first 24 weeks of pregnancy, after which time a fetus is considered viable outside the womb. In 1992’s Planned Parenthood v. Casey, the court further determined laws could not impose an “undue burden” on reproductive rights.
The leaked draft breaks from these decisions. In it, Alito wrote that the court’s decision in Roe v Wade “was egregiously wrong from the start.”
“We hold that Roe and Casey must be overruled,” Alito wrote, saying the decisions “have enflamed debate and deepened division.”
If the Supreme Court overturns Roe v. Wade, would abortion be illegal in the US?
Striking down Roe would end federal protections for abortion, returning the decision to the individual states. While that would not make abortion illegal nationwide, 26 states have laws restricting or banning abortion that would take effect immediately, according to the Guttmacher Institute, a reproductive rights advocacy group.
Some are older measures that have simply been unenforced since 1973, but 13 states have so-called trigger laws that would immediately take effect should Roe be struck down, banning or severely limiting access to abortion within their jurisdictions.
Four states — Alabama, Louisiana, Tennessee and West Virginia — have passed amendments explicitly declaring that their state constitution does not secure the right to terminate a pregnancy.
Separately, 16 states and the District of Columbia have passed laws protecting the right to choose in case Roe is overturned.
An interactive Planned Parenthood map indicates the current status of abortion in all 50 states and how access to abortion would likely change in each if Roe v. Wade is overturned.
Who will be most impacted if Roe is overturned?
The Center for Reproductive Rights, which is providing legal counsel to the Jackson Women’s Health Organization, said if Roe was overturned, marginalized groups like Black, Indigenous and other people of color; immigrants; the disabled; and the economically disadvantaged “will experience the greatest harms.”
In general, women in Republican states, especially those without resources to go elsewhere for services, will be most impacted.
According to a New York Times analysis of research from Middlebury College; the University of California, San Francisco; and the Guttmacher Institute, 41% percent of women of childbearing age would see their closest abortion clinic close. The average distance they would have to travel to reach one would be almost 280 miles, up from 35 miles now.
Overall, the Times found, the number of legal abortions in the country would fall by at least another 13%.
What happens next in Dobbs v. Jackson Women’s Health Organization?
According to Politico, Samuel Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett are in agreement that Roe v. Wade is unconstitutional.
Erin Schaff-Pool/Getty Images
The Supreme Court isn’t expected to issue a published opinion on Dobbs until June. Roberts, who confirmed the authenticity of the draft opinion on Tuesday afternoon, has ordered an investigation into the leak.
Politico reported that sources “familiar with the court’s deliberations” indicated fellow Republican-appointed justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett had voted with Alito after the justices heard oral arguments in December.
According to the same person, the outlet reported, the three justices appointed by Democrats — Stephen Breyer, Sonia Sotomayor and Elena Kagan – are working on dissenting opinions.
The article didn’t indicate how Roberts, who was nominated by Republican President George W. Bush in 2005, would vote.
What are people saying about the case?
Before Roberts confirmed the draft, Mississippi Attorney General Lynn Fitch said in a statement that the state “will let the Supreme Court speak for itself and wait for the Court’s official opinion.”
In the wake of the leaked SCOTUS opinion, Senate Majority Leader Chuck Schumer said the chamber will vote to codify the right to abortion as law.
Al Drago/Bloomberg via Getty Images
The breach also triggered a response from Senate Majority Leader Chuck Schumer, a Democrat from New York. Schumer said he hopes to hold a vote next week to codify the right to an abortion in law.
“This is not an abstract exercise. This is urgent,” Schumer tweeted Tuesday afternoon.
President Joe Biden released a statement saying that he believes a woman’s right to choose is “fundamental.” “Roe has been the law of the land for almost 50 years, and basic fairness and the stability of our law demand that it not be overturned,” Biden said. “We will be ready when any ruling is issued.”
A Washington Post-ABC News poll conducted April 24 to 28 found 54% of Americans think Roe v Wade should be upheld, compared to 28% who believe it should be overturned, nearly a 2-to-1 ratio.
What do legal scholars think of the draft opinion?
Constitutional scholars have been debating the legal merits of the Roe decision since it was issued, with even some who support a woman’s right to choose calling Blackmun’s opinion into question.
Long before becoming a Supreme Court Justice in 1993, the late Ruth Bader Ginsburg wrote in the North Carolina Law Review that the court “ventured too far in the change it ordered and presented an incomplete justification for its action.”
But Joseph Thai, associate dean of research and enrichment at Oklahoma University’s College of Law, said Alito’s draft opinion “pulls the rug out from under modern constitutional law.”
“From his view, the only rights guaranteed to Americans are the ones that are deeply rooted in the 18th and 19th centuries,” Thai told CNET. “That’s very few rights — and for a very slim group of people.”
Constitutional rights recognized in the 18th and 19th century “are the floor, not the ceiling,” said Thai, whose focus is constitutional law and the Supreme Court. “As liberty and equality have grown, the Constitution has grown, too.”
The draft opinion “disregards a lot of what most people in America consider fundamental rights,” he added. “Like the right to marry someone of a different race, the right to contraception, to sexual intimacy outside of marriage. The arguments put forward in Roe are the legal bases of a lot of rights many of us assume we have about bodily autonomy.”