Justices from the conservative majority of the U.S. Supreme Court have privately voted to overturn Roe v. Wade – the 1973 decision that granted constitutional federal protections for the right to an abortion – according to a leaked draft opinion first reported by Politico and confirmed as authentic by Supreme Court Chief Justice John Roberts.
The Court has not handed down anything official, and might not for a couple more months, meaning Roe v. Wade currently remains in place. But the draft opinion could be an indicator that federal abortion rights as we’ve known them for the past half-century will end in the near future.
Seema Mohapatra, Murray visiting professor of law at Southern Methodist University and an expert in health law and bioethics, and Elizabeth Sepper, a University of Texas at Austin law professor specializing in religious liberty, health law and equity, joined the Texas Standard to discuss the draft opinion and what it could mean for Texans.
What the draft opinion, led by Justice Samuel Alito, says
The draft would explicitly overturn Roe v. Wade, as well as Planned Parenthood v. Casey, which reaffirmed Roe about 30 years ago, Sepper tells the Standard. The opinion says that in order for the Constitution to protect abortion, abortion has to be a right deeply rooted in our history and tradition.
“It begins by saying, ‘For the first 185 years after the adoption of the Constitution, each state was permitted to address this issue in accordance with the views of its citizens.’ So the court says it’s turning the issue back to the states to make their own decisions,” Sepper said. “Of course, we can note that for much of that time period after the adoption of the Constitution, women and people of color were excluded from the full constitutional citizenship. So they weren’t making decisions about abortion during much of our history.”
What the opinion means for regular folks, should it come to pass
Texas, many neighboring states and others have so-called trigger laws in place that will ban – and even criminalize, in some cases – abortion if Roe v. Wade is overturned, Mohapatra says.
“Most people who seek abortion in Texas are parents themselves, and often they are low-income people who do not have the resources to go far away,” she said. “And when we look at the fact that forced pregnancy really has different outcomes depending on what race you are – we know that Black women are much more likely to die during pregnancy than other women – this has differential impacts on people of color and poor people, and the court opinion really ignores that.”
The likelihood that one of the conservative justices could change their mind
There are six votes in favor of the Mississippi law that is at the center of this draft decision; that law bans abortions before “fetal viability,” which the Court had previously decided was around 24 weeks of gestation. That would functionally overturn Roe v. Wade, Sepper says, which seemed to be the approach that Chief Justice Roberts had preferred: to functionally but not explicitly overrule. But now there are now five justices who want to explicitly overrule Roe.
“There are theories about why this opinion has leaked,” she said. “And one is that a justice – perhaps Justice [Brett] Kavanaugh, perhaps Justice [Neil] Gorsuch – isn’t totally on board with the wide sweep of Justice Alito’s draft, and that this might be an effort to keep the hesitant justice in line.”
The significance of a leaked draft Supreme Court opinion
It’s very unusual for a full draft opinion to be leaked in this manner, Mohapatra says, noting that in the original Roe v. Wade opinion, a clerk merely leaked the fact that a vote was coming.
“For this kind of high-profile case, I agree with Prof. Sepper that there has to be a reason why this was leaked,” Mohapatra said. “And I agree with her contention that one of the theories is that it’s likely to try to keep the conservative votes in place, and also kind of as a trial ‘balloon’ to see how the public reacts to this, because we still probably have a couple of months before we get the the real opinion.”
Possible public-health outcomes if this draft opinion becomes official
If Roe is overturned, safe abortion will be inaccessible for many people, Sepper says, adding that many people will turn to self-managed abortion, including taking medication at home.
“I think we’ll see criminal prosecutions of those who aid and abet people to seek abortions, whether they’re friends or family members,” she said. “It’s going to cause people experiencing pregnancy, including intended pregnancies, to avoid medical care because they’re going to be concerned that physicians or nurses in the emergency department or in clinics will report them if they have a miscarriage or experience difficulties in their pregnancy.”
If the draft opinion is similar to the opinion that ends up being issued, Mohapatra says, it won’t end at abortion.
“The rights that are not ‘rooted in the history and tradition of this country’ would include same-sex marriage, would include contraception,” she said. “I think abortion is just the first step of many. And so people should be aware of that.”
Other Supreme Court opinions that have been overruled years later
In the draft opinion, Justice Alito talks about different opinions that have been overruled by the Supreme Court.
“I think the reason that Alito kind of fashions Roe v. Wade as an ‘egregious opinion,’ in his words, is because it is such an unusual move to overrule an opinion, that it would have to be very wrongly decided,” Mohapatra said. “And I think that the reason that Justice Roberts had wanted to kind of basically get rid of the viability standard and essentially gut Roe, but not overrule it, is because it is so unusual and it does question the legitimacy of the law and the court.”
What happens next? Where do we go from here?
There are questions about whether there could be a federal Women’s Protection Act that would guarantee a federal right to abortion, Mohapatra says, or whether there could be “sanctuary states” that protect abortion access.
“However, the reality is that the Supreme Court is kind of the final arbiter of the law,” she said. “And so at the same time that the Supreme Court has had so many rulings, [like] gutting the Voting Rights Act, and Alito’s opinion [that] says, Well, this is kind of back to the states and for people to vote,’ the reality is that often because of the way that the votes are gerrymandered, we don’t really actually see the will of the people in terms of an abortion policy or other policy.
“And so it’s kind of ironic the way that this opinion is written and said, Well, this is really part of the democratic process. But the court itself has kind of stymied the democratic process.”