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

NEW YORK — 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 Roe is overturned, New York's Reproductive Health Act, passed in 2019, will keep abortion legal in the state.

New York leaders reacted.

"I am horrified by the apparent draft Supreme Court opinion leaked [Monday] evening that would overturn the right to abortion guaranteed by Roe v. Wade," Gov. Kathy Hochul stated. "For the sake of women across the country, this should not be the Supreme Court's final opinion when it comes to abortion rights. We have been fighting this battle for too long. I refuse to go backwards. I refuse to let my new granddaughter have to fight for the rights generations have fought for and won, rights that she should be guaranteed. For anyone who needs access to care, our state will welcome you with open arms. New York will always be a place where abortion rights are protected and where abortion is safe and accessible. Just as the Statue of Liberty lifts her lamp tall in our harbor, New York will never stop fighting for what's right — unafraid and undeterred."

Joy Calloway, interim president & CEO of Planned Parenthood of Greater New York, also weighed in.

"This is not simply a draft of a devastating and politically motivated Supreme Court opinion, it is a roadmap for dismantling our fundamental right to safe, legal abortion, a right codified nearly FIFTY YEARS AGO," Calloway stated. "Abortion bans are designed to deny Black, Latinx, Asian and Indigenous people their right to control their bodies and futures. These bans disproportionally harm people with low incomes who cannot afford access to fundamental health care or travel to get it. Abortion bans are the perpetuation of racism, sexism, and economic injustice in a country that has a long history of stripping people of their own personal autonomy. Let’s be clear: Abortion is still legal. As of today, it remains your constitutional right. And thanks to reproductive rights champions in New York, abortion will remain safe and legal in this great state regardless of what happens at the Supreme Court. Abortion is health care. Health care happens at Planned Parenthood of Greater New York.”

Rep.Lee Zeldin, R-Shirley, who is running for governor, issued a statement via his gubernatorial campaign, reported City & State NY.

"The unprecedented leak that came out of the U.S. Supreme Court is very concerning and needs to be investigated," Zeldin's campaign stated. "Accountability must follow."

Donna Lieberman, executive director of the New York Civil Liberties Union, said New York would "once again be called on to lead," and open its doors to people across the United States seeking abortion care.

"As federal reproductive rights vanish, New York will again be a beacon for people who need abortion care, including women, girls, and transgender and gender non-conforming people," Lieberman said. "In New York today the Reproductive Health Act codifies Roe v. Wade in state law, recognizing abortion - and the whole range of reproductive care — as a fundamental right. People from Mississippi to Texas are welcome here and have the right to get the vital care they need ... In the coming weeks and months the NYCLU will work tirelessly to ensure that New Yorkers and anyone across the country needing care knows that in New York abortion is your right."

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 Donald 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.

Nassau Legis. Josh Lafazan, D-Roslyn, said if the Supreme Court overturned Roe V. Wade, it would be "equal parts wrong, outrageous and downright maddening."

"To see the Supreme Court stray miles away from its Constitutional duties to serve as a check on the Legislature and morph into a political grand jury is a sad day for this Republic," Lafazan stated. "Make no mistake about it: the rights of millions of women in this country are being taken away by a mere few individuals."

State Sen. Shelley Mayer, D-Port Chester, said she is "alarmed and distressed" by the report.

"I deeply support a woman’s right to control her own reproductive decisions and more specifically, the right to terminate a pregnancy under the Constitutional limits set forth in Roe v. Wade," Mayer stated. "The decision to become a parent - a lifetime responsibility - is not one which should be imposed by the government, which is effectively what will happen should the Supreme Court adopt [Monday's] leaked decision. It is not just the personal autonomy of our bodies as women, but it is also the right to control our destiny as adults that is at risk here. This decision will be particularly burdensome and excruciating for those without resources or support. Additionally, I have tremendous concerns about the overturning of constitutional precedent that this decision presages. What constitutional rights might be attacked next? We must protect these rights with all the passion and energy they deserve."

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.

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.