SCOTUS Votes To Overturn Roe, Leaked Opinion Says

The Supreme Court has voted internally to overturn Roe v. Wade, the landmark 1973 case that protected a woman’s right to an abortion, according to a leaked draft opinion obtained by Politico. The vote followed the debate in the case Dobbs v. Jackson Women’s Health Organization, a contentious case regarding a Mississippi law that would ban abortion after 15 weeks of pregnancy. A final decision in the case has not yet been released.

The draft opinion, written by Justice Samuel Alito and dated Feb. 10, provides a stunning rebuke to Roe and a subsequent 1992 case — Planned Parenthood v. Casey — that enshrined abortion access as a fundamental women’s right under the Fourteenth Amendment.

In the document titled “Opinion of the Court,” Alito writes, “Roe was egregiously wrong from the start.” He further writes, “We hold that Roe and Casey must be overruled,” and that “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” In other words, the opinion declares that it is not the role of the courts to decide the issue of abortion, and it should be up to politicians in Congress and state legislatures.

Roe was decided in a 7-2 vote back in 1973, where five Republican appointees voted together with two Democratic justices to establish a constitutional right to abortion. Since then, the case has become far more contentious, as abortion rights became a decidedly party-line issue. Despite that, for nearly the past five decades, the Supreme Court has never fully wavered from the standards set by Roe.

Ever since Justice Amy Coney Barrett was appointed to the court in a highly controversial preelection vote in 2020, though, the tides seemed to be changing against abortion rights. Conservative justices, which now dominate the court 6-to-3, have consistently indicated that they are open to revisiting Roe. This has led a number of Republican-led states to pass increasingly restrictive abortion laws.

The politicization of abortion rights along party lines has already proved challenging for women who want to obtain abortions in restrictive red states. Reasons for obtaining an abortion range from rape, medical inability to give birth, and avoiding giving birth to a child with a life-threatening illness or genetic disease, among others.

Despite current law requiring states to permit abortion until a fetus reaches viability at around 23 weeks, the reality is that many women are unable to access abortions far before that. And, despite the fact that abortion is a constitutionally-protected right, oftentimes women face difficulty in obtaining one, even in blue states, according to an investigation published by FiveThirtyEight in March.

In Mississippi, for instance, just one abortion clinic exists, resulting in extremely long wait times for abortion and long travel distances to obtain one. And even in California — a state which has enshrined the right to abortion in its constitution — rural women often have to wait up to a week or more to get an abortion. This is due to a lack of abortion clinics, or clinics being inundated with out-of-state travelers seeking to get an abortion, resulting in skyrocketing wait times at clinics.

Furthermore, other states have imposed barriers to obtaining an abortion, such as prohibiting health insurance plans from covering the procedure. This restricts access to low-income Americans. The median, out-of-pocket cost for an abortion is $575, according to a 2014 study. The result is many women cutting down on groceries, delaying bills, and seeking out abortion funds to pay for one.

Other states require minors to obtain parental notification and consent before an abortion. Another common procedure is to force abortion-seekers to be “counseled,” which involved feeding the patient inaccurate and scary information about obtaining an abortion. Some states require patients to go through a waiting period before the abortion can begin, and other states force patients to do an ultrasound first. In six states, abortion providers even have to describe and display the ultrasound to the woman first.

These barriers have often posed an undue burden on women seeking to obtain an abortion, despite Planned Parenthood banning such practices.

Thus, should Roe be overturned, a large swath of the country would be left with no access to abortion at all, from Florida to Idaho.

Despite the constant politicization of abortion rights, the majority of Americans still support Roe and ensure women’s access to one. According to the Pew Research Center, the share of Americans who believe abortion should be fully illegal is just 19%. Thirty-two percent believe abortion should be legal under any circumstance, while 48% believe that it should be legal in certain circumstances. A poll from Quinnipiac University conducted last November indicates 63% support for Roe. Furthermore, despite Republican politicians’ consistent attacks on abortion, 39% of Republicans still believe abortion should be legal in all or most cases. Even most men and religious people still support abortion rights.

Studies have indicated that banning abortions does not stop women from seeking out other ways to end their pregnancies, nor is it helping to protect any more lives. A study by the University of Colorado, Boulder, published last September, found that forcing women to give birth may lead to a 21% spike in pregnancy deaths, with women of color bearing the brunt of the suffering. Ana Langer, a professor of public health at Harvard University, said, in an interview last December, “Restricting women’s access to safe and legal abortion services has important negative health implications. We’ve seen that these laws do not result in fewer abortions. Instead, they compel women to risk their lives and health by seeking out unsafe abortion care.”

“If the current trend in the U.S. persists, ‘back alley’ abortions will be the last resource for women with no access to safe and legal services, and the horrific consequences of such abortions will become a major cause of death and severe health complications for some of the most vulnerable women in this country,” said Langer.

Not only would America usher in a dark era for abortion rights should the Supreme Court choose to overturn Roe, but it is also highly likely such a decision could further undermine the public’s trust in the Supreme Court. Already, clear majorities of Americans regardless of partisan identification believe that the court is mainly motivated by politics, and this could only further entrench that notion. This is one possible reason why the opinion may still change: Chief Justice John Roberts has been trying to turn to another justice and leave the issue of Roe to deal with later to preserve the legitimacy of the court, according to a Wall Street Journal editorial published last week.

After the news broke that the court may be on the verge of dismantling abortion protections on Monday night, both pro-abortion rights and anti-abortion activists began gathering outside the Supreme Court in Washington.

The consequences of a Roe overturn may already be starting to play out. In California, politicians have been prepping for a post-Roe America, where the state would become an “abortion haven” for women seeking to obtain one. California is expecting a 3,000% increase in abortion demand. The National Network of Abortion Funds, an organization that aids women in overcoming financial and logistical barriers to seeking an abortion, said it was overwhelmed with donations. Meanwhile, the Susan B. Anthony List, an anti-abortion group, announced on Twitter that they would be working toward “build[ing] consensus for the strongest protections possible for unborn children and women in every legislature.”

A large number of politicians have already issued statements on social media regarding the leaked opinion. Democrats are looking to seize on the issue to garner support for their party in the upcoming midterms. As Sen. Bernie Sanders (I-Vt.) called on the Senate to end the filibuster to codify abortion protections into the law on Twitter, Sen. Tom Cotton (R-Ark.) applauded the court’s potential decision to overturn Roe.

National Democrats, including Senate Majority Leader Chuck Schumer, House Speaker Nancy Pelosi, and Gov. Gavin Newsom of California have promised to fight to safeguard abortion rights. The Women’s Health Protection Act, which would codify abortion rights into U.S. law, passed the House narrowly last year, but is currently stalled in the Senate, unable to overcome a Republican filibuster. (To do so would require 10 Republicans to side with all 50 Democrats.) Some Democratic Senate candidates, such as Rep. Tim Ryan, who is running for the U.S. Senate in Ohio, are urging for the filibuster to be eliminated to pass the act.

Should Roe be overturned, pro-abortion rights activists fear that the right to a safe, legal abortion is not the only thing that could go down with it. The right to gay marriage, established in 2012 by Obergefell v. Hodges, or even the right to contraception and birth control, established by Griswold v. Connecticut in 1965, might be on the verge of falling, too.