Striking Down Roe V. Wade Would Cause Seismic Shift In Abortion Policy

ACROSS AMERICA — If Roe v. Wade is struck down — and a leaked draft majority opinion to Politico suggests the U.S. Supreme Court is poised to overturn the landmark 1973 ruling — women’s access to abortion will depend on where they live.

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 as well as Planned Parenthood v. Casey, the case that affirmed a woman’s right to obtain an abortion.

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

The leak of the draft opinion, which Chief Justice John Roberts confirmed Tuesday is authentic, is a blow to an institution that holds the privacy of its deliberations sacrosanct. Roberts ordered an investigation to determine the source of the leak, which he called an “egregious breach of trust.”

“Although the document described in yesterday’s reports is authentic, it does not represent a decision by the Court or the final position of any member on the issues in the case,” Roberts said in the court’s first official statement since news reports about the draft circulated overnight. “To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed.”

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.

If the court does strike down Roe, a patchwork of state laws will determine where women can get an abortion. 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.

Biden: Midterm Stakes

President Joe Biden said in a statement that overturning Roe would raise the stakes in the November midterm elections.

“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,” Biden said. “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.”

Last year after Texas passed a law that outlawed most abortions in the state, the House passed legislation that would guarantee abortion rights. To pass the Senate, it would have to get a 60-vote majority to pass the Senate; Republican Sens. Susan Collins of Maine and Lisa Murkowski of Alaska support abortion rights, but their support is far short of what’s needed to meet the 60-vote majority required to make Roe v. Wade’s provision permanent law.

Liberal Vermont Sen. Bernie Sanders tweeted that Congress “must pass legislation that codifies abortion rights as the law of the land in this country NOW,” even if it means ending the filibuster to pass it with 50 votes.

South Dakota Republican Gov. Kristi Noem said Twitter that if the court strikes down Roe, she will “immediately call for a special session to save lives and guarantee that every unborn child has a right to life” in her state.

Arkansas Republican Gov. Asa Hutchinson said on Twitter he has "advocated for the reversal of Roe v. Wade all of my career … and I do hope the court returns authority to the state,” but said “the leak from someone within the court is reprehensible and should lead to an investigation.”

“While we are encouraged and optimistic at the possibility that abortion law will be left to the duly elected representatives of the states, draft rulings are not actual rulings and leaked drafts are a dangerous violation of court protocol and deliberations,” Utah Republican Gov. Spencer Cox said on Twitter. "Utah has already passed a law, SB174, that will govern if the high court decides to overturn Roe. We anxiously await the court’s actual ruling in this case.”

Seismic Shift In Abortion Rights

Abortion advocacy groups protested outside the Supreme Court Monday night and Tuesday, and more demonstrations are expected around the country as Americans react to what would be a seismic shift in reproductive rights policy.

“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.

Support Waning In Some Groups?

Recent polls show a majority of Americans support abortion rights. A May 2021 Gallup poll showed broad support for abortion rights, with 80 percent saying they support a woman’s right to choose in most cases, and 47 percent saying abortion is morally acceptable, a record high.

A Pew Research Center poll, also in May 2021, showed 59 percent of Americans support abortion rights in most cases, a slight drop from 1995, when 60 percent supported abortion rights.

However, support for abortion rights support wanes among younger Americans who make up about a third of the electorate, according to a recent poll by Students for Life of America’s Demetree Institute for Pro-Life Advancement.

It showed 8 in 10 millennials and Gen Zers want to vote on abortion policy; that 3 in 4 want limits on abortion; and 4 in 10 either want no abortion at all or abortion only in the cases of rape, incest or when a mother’s life is in danger.

Mississippi Case Behind Challenge

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.

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 Roberts, the chief justice, will vote or if he will write an opinion of his own.