Abortion In Arizona: What Happens If Roe V. Wade Is Overturned

ARIZONA — A draft majority opinion reportedly leaked to Politico suggests that the U.S. Supreme Court is poised to overturn Roe V. Wade, the landmark abortion ruling. A final decision on the case is not expected until late June or July.

Chief Justice John Roberts on Tuesday confirmed the authenticity of the draft opinion but said it does not represent a decision by the high court or the final position of any of the court’s members. Roberts also directed the Marshal of the Court to investigate the source of the leak.

Politico reported Monday that it had obtained the draft majority opinion written by conservative Justice Samuel Alito and circulated inside the court that strikes down Roe and Planned Parenthood v. Casey, the case that affirmed a woman’s right to obtain an abortion.

If the court strikes down Roe, abortion rights would be left to the states to decide. Right now, 22 states have laws on their books to ban or restrict abortion, and four more appear poised to do so, according to the Guttmacher Institute, an abortion rights policy group.

If overturned, Arizona is one of 26 states that are certain or likely to ban abortion, according to the institute. Arizona's pre-Roe v. Wade abortion ban dates back to 1901, when Arizona was still a U.S. territory. This law is blocked by Roe v. Wade, but it could become enforceable again, if Roe v. Wade is overturned.

Arizona Attorney General Mark Brnovich seemed to praise the draft opinion, via Twitter.

"We were proud to stand with life this term of the U.S. Supreme Court," Brnovich said. "We joined the effort in Mississippi's landmark case (Dobbs), and refused to back down in other cases (Brnovich v Isaacson) when others would not. We will always protect the most vulnerable in our state."

On the other side of the aisle, U.S. Sen. Mark Kelly said that if the court decides to overturn Roe it would be "an enormous step backwards for our country."

He went on to say that women should have the right to make their own choices about when to start a family.

"I’ll do everything I can to protect that right," Kelly said.

Much can change before the court publishes its final decision. As draft opinions are circulated among justices, votes can and have changed on controversial cases, Politico reported.

Citing a person familiar with the court’s deliberations, Politico reported four other Republican-appointed justices voted with Alito: Clarence Thomas and three Trump-appointed justices, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

Abortion rights advocacy and other groups were quick to react after Politico published its report.

“Let's be clear: This is a draft opinion. It’s outrageous, it’s unprecedented, but it is not final,” Planned Parenthood tweeted. “Abortion is your right — and it is STILL LEGAL.”

The American Civil Liberties Union said overturning Roe “would deprive half the nation of a fundamental, constitutional right that has been enjoyed by millions, for over 50 years.”

“The breach in protocol at the Court pales in comparison to the breach in constitutional freedoms that the Court is charged with upholding,” the ACLU said.

The National Right to Life organization said it would “let the Supreme Court speak for itself” and would wait for its decision before commenting.

U.S. Rep. Paul Gosar, who represents Arizona's fourth congressional district said on Twitter that more than 63 million Americans have been "murdered" through abortion since Roe was decided in 1973.

"It's long past time to end this barbaric practice," Gosar said.

He also speculated that the draft was leaked by, "far left law clerk who is trying to derail the final decision by creating mass outrage, hoping to scare a Justice to change his or her mind."

Gosar also thanked former President Donald Trump for making this decision possible, referring to Trump's appointing three conservative judges to the U.S. Supreme Court, significantly changing the court's makeup.

U.S. Sen. from Arizona Kyrsten Sinema spoke of the dangers to women's heath if abortion is banned in Arizona.

"Overturning Roe v. Wade endangers the health and wellbeing of women in Arizona and across America," Sinema said. "Protections in the Senate safeguarding against the erosion of women’s access to health care have been used half-a-dozen times in the past ten years and are more important now than ever."

The Supreme Court heard oral argument late last year on a Mississippi case challenging Roe. The case, Dobbs v. Jackson Women's Health Association, challenges a Mississippi law that bans abortions in most cases after 15 weeks of pregnancy. Arizona Attorney General Brnovich joined several other states last summer in filing an amicus brief with the U.S. Supreme Court in support of Mississippi's challenge to Roe.

The law undercuts the standard set by Roe that guarantees women access to the procedure up until the fetus is viable outside her womb, typically around 23 or 24 weeks after conception, and longer in cases where the woman's life or health is in jeopardy.

Mississippi’s lawyers argued that striking down Roe, and the Planned Parenthood v. Casey case that affirmed it, is the only means available to enforce the ban.

In Roe, the Supreme Court said an unwanted pregnancy could lead a woman to "a distressful life and future." In the 1992 case, Casey v. Planned Parenthood, the court upheld Roe, finding that abortion rights were necessary for "women to participate equally in the economic and social life of the nation."

Lawyers for the state of Mississippi proposed an array of mechanisms to uphold the 15-week abortion ban but said the court ultimately should overturn the "egregiously wrong" Roe and Casey rulings.

If the court "does not impose a substantial obstacle to 'a significant number of women' seeking abortions," the state argued in December, the justices should reinterpret the "undue burden" standard established in Roe and give the state the authority to "prohibit elective abortions before viability" of the fetus.

The Center for Reproductive Rights, which challenged the law with the Jackson Women's Health Organization, argued that although the Constitution does not address pregnancy, courts have upheld the decision in Roe, which was tied to privacy and personal autonomy.

"Every version of the State's argument amounts to the same thing: a request that the Court scuttle a half-century of precedent and invite states to ban abortion entirely," the plaintiffs' brief states.

In oral arguments, Center for Reproductive Rights Senior Director Julie Rikelman said the state's ban on abortion two months before a fetus is viable outside the womb is "flatly unconstitutional under decades of precedent."

"Two generations have now relied on this right, and 1 out of every 4 women makes a decision to end a pregnancy," Rikelman said.

The plaintiffs also argued that denying women access to abortion is detrimental to their physical and emotional health.

Though the leaking of the draft opinion is unprecedented and a blow to an institution that holds the secrecy of its deliberations sacrosanct, the Supreme Court’s shift on abortion rights isn’t unexpected. The 6-3 conservative majority on the court previously signaled that it may be willing to impose new restrictions on abortion.

According to the Politico report, the three Democratic-appointed judges — Stephen Breyer, Sonia Sotomayor and Elena Kagan — are writing dissent opinions. It’s unclear how Chief Justice John Roberts will vote or if he will write an opinion of his own.