SCOTUS Leak and the Fate of Roe v. Wade

Explained

On May 2nd at 8:32 PM, media outlet Politico leaked a first draft opinion written by Supreme Court Justice Samuel Alito to the eight other court members. The 98-page draft calls for the reversal of the 1973 landmark abortion case Roe v. Wade. Alito's opinion document reads, "Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representative." This ruling would overturn Roe v. Wade, revoking a woman's right to an abortion as a federal right guaranteed by the Constitution. Laws allowing or restricting abortion would then fall under the jurisdiction of each state.  

"Roe was egregiously wrong from the start. Its reasoning exceptionally weak, and the decision has had damaging consequences," the piece reads. "It is time to heed the Constitution and return the issue of abortion to the people's elected officials."   

This draft is not set in stone. According to Politico, in the lead up to major court decisions, multiple drafts can circulate, and votes can change. The court's ruling will not be final until it is published, which is likely in the next couple months. Chief Justice John Roberts said that the draft opinion “does not represent a decision by the Court or the final position of any member on the issues in the case.” This Supreme Court leak is unprecedented; this is the first time a draft opinion has been leaked before a final court ruling. 

In 2018 the state of Mississippi passed a law (Gestational Age Act) banning all abortions passed 15 weeks of pregnancy, becoming the country’s strictest abortion law. The law reads, “Except in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform or induce an abortion of an unborn human being if the probably gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.” This law also bans abortion in the case of pregnancies due to rape and incest. In response to this law, Mississippi’s only abortion clinic, Jackson’s Women’s Health Organization, sued the state of Mississippi to have the law repealed. The federal court revoked the law, finding the law unconstitutional. The Fifth Circuit Court of Appeals then affirmed that ruling, citing the Supreme Court’s Roe v. Wade case as legal precedent.  Mississippi’s attorney General appealed to the Supreme Court with the end goal of overturning Roe v. Wade.  

Justice Alito’s draft seeks to find the answer to the question of whether or not the Constitution grants a right to an abortion. The draft calls into question the reaffirmation of Roe v. Wade case by the 1992 court case Planned Parenthood v. Casey based on the doctrine of stare decisis, a doctrine or policy of following rules or principles laid down in previous judicial decisions. The draft claims that the constitutional basis for the ruling of Roe v. Wade rests on shaky grounds. The piece makes three arguments: 1. The term “liberty” does not apply to the right to an abortion. Therefore, the Fourteenth Amendment does not protect that right 2. The issue of abortion is not rooted America’s history and traditions. 3. The right to obtain an abortion is not supported by other legal precedents. The letter concludes that the right to an abortion is not a fundamental Constitutional right. “As we have explained, procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitutional’s text or in our Nation’s history.”

Chief Justice John Roberts reacted to the leaked document in a written statement saying, “To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed. The work of the Court will not be affected in any way.” He went on to lament the breach of trust within the Supreme Court staff.  

According to pro-abortion organization Guttmacher Institute, 26 states are certain or likely to ban abortion. Of these 26 states, 22 of them already have either trigger bans, pre-Roe bans, near-total bans, six-week bans, an eight-week ban, or a combination of them. A “trigger ban” is a law designed to immediately go into effect if Roe is overturned. Based on political and historical indicators, four of these 26 states will likely restrict or ban abortion including Florida, Indiana, Montana, and Nebraska. 

 On Wednesday May 11th, the Senate blocked the Women’s Health Protection Act of 2022, a bill that would codify Roe v. Wade. This legislation was an attempt to increase the difficulty of an overthrow of the 50-year-old ruling by the Supreme Court. The legislation was struck down in a 49 to 51 vote mostly along party lines via filibuster, blocking the act from reaching the chamber floor for an up-or-down vote.