You can access the draft opinion published by Politico here: The draft opinion by Justice Samuel Alito
Following the leak demonstrators on both sides of the abortion rights debate verged on the steps of the nations highest court. Crowds also gathered outside homes of Samuel Alitho, John Roberts and Kavanaugh. Senate unanimously passed a bill to provide heightened the security for all justices and families.
Now with the leaked draft, the cat’s out of the bag, and we all can speculate what the draft opinion means for the future of abortion rights in US.
In this post, we are going to take a look at the American conversation around abortion in terms of recent figures and stats, the originalist tendencies in the Supreme Court (SCOTUS) and break down the major takeaways from the leaked draft in order to decide what the future may look like for abortion rights in US at federal and state levels.
Abortion in figures
- The World Health organisation numbers show annually 73 million abortions take place worldwide.
- In America roughly one in four women of reproductive age that’s nearly 23.7% will have an abortion before the age of 45. Source: Guttmacher institute.
- About half of abortions are carried out for medical reasons. Since 2000, the rate of legal abortions in the US has dropped from 857 000 to 630 000.
- Women of Colour have abortions at disproportionately high rates. This is owing to the lack of access to contraception and huge economic disparities in poorer black communities.
Abortion debate, a legal binary in America
Public polls have consistently shown that a large majority of Americans believe abortion access is important. That’s a staggering 70% who says abortions rights should be constitutionally protected.
Roughly 7 out of 10 Americans say abortion decision should be left to the woman and her doctor. So a potential overturning of Roe will be inconsistent with the public will.
Watch 2018 Netflix Documentary Reversing Roe
How did Dobbs come about?
- The case of the heart at all of this is Dobbs v. Jackson Women’s Health Organization to uphold a Misissippi ban on most abortions after 15 weeks.
- The law has only an exception for the life of the mother, rape and incest.
- Centre for Reproductive Rights, the last abortion clinic in Mississippi filed this case to challenge the constitutionality of the ban.
- The Supreme Court is re evaluating whether abortion should be federally protected or it should return the right to states to limit abortion.
What does the leaked draft opinion say?
The leaked opinion suggests that the five conservative Supreme Court justices appear poised to strike down Roe v Wade, the land mark decision that guaranteed women federal constitutional right to abortion for almost five decades.
Justice Samuel Alitho a frequent critic of the abortion rights views Roe v Wade as a constitutional overstep, which is exceptionally weak in its reasoning and thus egregiously wrong from the very start. According to his draft opinion right to abortion was never a constitutional right to begin with.
“We hold that Roe and Casey must be overruled. It is time to heed the constitution and return the issue of abortion to the people’s elected representatives.” Justice Samuel Alito in the draft opinion.
Fact sheet of Roe V Wade
Let’s recap Roe in just 10 points.
• In a 7-2 ruling declared State laws banning abortion as unconstitutional.
• A woman’s constitutional right to privacy was extended to the unborn child or fetus. In doing so, the court applied the right to privacy established in Griswold v Connecticut (1965).
• No state can ban abortion before viability.
• The Court divided the pregnancy period into three trimesters.
• During the first trimester, the decision to terminate the pregnancy was solely at the discretion of the woman.
• After the first trimester, the state could “regulate procedure.”
• During the second trimester, the state could regulate (but not outlaw) abortions in the interests of the mother’s health.
• After the second trimester, the fetus became viable, and the state could regulate or outlaw abortions in the interest of the potential life except when necessary to preserve the life or health of the mother.
• Viability is set at after second trimester of pregnancy, that is after the end of 27th week of pregnancy.
Right to abortion an implicit one
The Federal constitutional protection to abortion granted by Roe v Wade is premised on the idea that a woman’s right to choose abortion is implicitly part of the constitutional guarantee of privacy. It is Roe which reasoned abortion as essentially a private right. However the US constitution does not make an explicit mention of a right to abortion. This is the trump card Conservative Justices are now looking to exploit. Roe ruled that despite no direct reference to right to abortion in the constitution the right to privacy implicitly protects the right to abortion.
All eyes on SCOTUS
Justice Ginsberg once said “At Supreme Court those who know don’t talk and those who talk don’t know”
The Supreme Court is one of the most private institutions in the US. Leaks are exceedingly rare to expect from an institution of the likes of SCOTUS who zealously guards public confidence and always takes the pride of staying above the partisan fray. It is speculated that the leak of Supreme Court draft will force the court to do some soul searching and rethink of its age-old internal mechanisms compelling it to change how it will operate in the future.
Justice Clarence Thomas commenting on the leak said:
“If someone said that one line of one opinion would be leaked by anyone and you would say that’s impossible. No one would ever do that. There was such a belief in the rule of law and the belief in the court and the belief in why we were doing….. That trust and belief is gone forever. When you lose that trust… it changes the institution fundamentally. You begin to look over your shoulders like in times of infidelity that you can explain it but you can’t undo it”.
The Chief Justice Roberts confirmed the authenticity of the 67-page draft dated Feb 10th said it is a an affront to and a betrayal of the confidence of the court. An investigation is also underway to find out the source of the leak.
Daniel Ellsberg who leaked the Pentagon Papers in 1971 claims that as the draft opinion is not a classified or a secret document, Politico or the person who leaked it has not broken the law. He also remarked
“it’s a very good thing that it got out. It was important to be out. Unauthorized disclosures are the lifeline of a republic”.
Roy Gutterman a law professor at Syracuse University is on the same page with Ellsberg's remarks and opines that as there are no specific laws prohibiting release of documents from within the Supreme court neither Politico nor the leaker will face criminal charges.
Why now? The timing of the leak
- Some speculate the leak was done with the intention of compelling the justices to change the draft opinion and to cause an uprising. Following the leak more Democrats than Republicans rallied onto the streets.
Texas right to life text pro life to 40237 in a tweet said:
“A leaked draft from SCOTUS alleged the full reversal of Roe v Wade. Please pray that the justices will be courageous! The leak could be an attempt by pro-abortion radicals to intimidate the court”.
- Now abortion is more than a health issue, the fight over abortion is in the hands of politicians. Ramifications of the leak have already been felt in the primary run-off results in ohio and Indiana. Races have largely attracted abortion rights groups. The conversion around Roe v Wade is likely to stay into mid-term elections in November which will see a change in its dynamics and the direction it is heading. It will almost be like a referendum on abortion and privacy. Republicans will try to sell the reversal of Roe as a political notch to win their right wing voter base.
Senator Lindsey Graham a South Carolina praised the draft opinion.
“Repelling roe v Wade is the right constitutional answer and roe was a constitutional overstep. We’ll be back into the business that we were before 1973 allowing each state what to do."
- However democrats are also in a good position to use the abortion issue to galvanize democratic and moderate voters to swing into their camp. Democrats have for long been complaining about the far right republican judicial assault on privacy, abortion and other reproductive freedoms of women.
- The year 2021 saw hundreds of restrictions and sweeping bans on abortions in conservative states.
If you want to know how Texas' SB8 law (2021) triggered a series of abortion bans across states, click here:
https://lawgradlk.blogspot.com/2021/09/an-america-without-abortion-roe-v-wade.html
Still a leak of a draft, not final
The draft does not convey a comprehensive and a refined position on Roe v Wade.
“It does not represent a decision by the court or the final position of any member on the issues in the case” John Roberts the Chief Justice of the Supreme Court made a statement.
Usually first drafts are a largely fluid and go through multiple drafts sometimes up to 20 drafts during the deliberative process. Marcia Coyle the National law journal commented during a brief interview with the PBS NewsHour.
So Supreme Court justices could well change how they cast their votes and decide to shift their draft decision in their final decision. But every indication shows the latter is less likely to happen and Roe will most likely be completely overruled. Any change if any, will be over how the court reasons the legal avenues available to overrule Roe.
Bifurcation in the Post-Roe American jurisprudence: Abortion access at state level
The writing is already on the wall for Roe v Wade. If the draft opinion is genuine and remains unchanged, it will uproot the federal constitutional protection to right to choose abortion. It will restore the pre-1973 scenario and instantly make abortion illegal in 22 states where they have trigger laws which automatically go into effect immediately after Roe is gone. The trigger laws exempt only abortions to save mother’s life.
Ending Roe would not however result in a nationwide ban on abortion. It will only empower state lawmakers in each state to pass laws on abortion.
At state level there’s little bit of a Wild West. States will have three options; either to ban, restrict or allow abortion. Therefore a more individualized approach to abortion as opposed to an universal adoption of policy is expected among states.
According to Pro abortion rights group Guttmacher Institute, 26 states are certain or likely to ban or severely restrict access to abortion, making abortion care unthinkable and unavailable in those states.
- Missouri for example has a trigger law that will immediately ban abortion if Roe is reversed.
- Oklahoma has a six weeks abortion ban with no exception for rape or incest, modeled on Texa’s SB 8.
- Michigan has a 1931 abortion law that makes abortion at any stage a felony and no exceptions are made for rape and incest.
- Louisiana has an anti-abortion law which permits abortions only up to 20 weeks.
However for trigger laws to come into effect, there needs to be a certification by Attorney General to the effect that Roe v Wade is overturned, which can be done on a short order.
Women in red states will have to travel thousands of miles to get an abortion from neighbouring 15 states where abortions are legal. Democratic lawmakers in liberal states are assuring that they will protect the right to abortion in those states. This month Connecticut governor signed into a law which expands abortion access and protect medical providers and patients from out of state. But the extent to which a state can regulate out of state patients will be open for question. And we will see court battles coming on these issues. New York, Illinois, Colorado and California are states where right to abortion is statutorily/constitutionally protected. After Roe is overruled other blue states which do not have an abortion law will pass new laws to protect abortion as a right.
Should we brace for a nationwide ban?
A potential ruling ending Roe v Wade won't impose a complete ban on abortion at the federal level. It will simply return powers to states to legislate on abortion.
But abortion opponents have in store a long term agenda to move for a federal ban on abortion. So overturning Roe won’t be the end of the story here. In the event a federal ban is imposed it will take away the abortion rights enjoyed in California, New York and other states where abortion is legal.
Originalism among the hard-right Supreme Court Justices
- Originalism is a legal philosophy that the words in the constitution should be literally interpreted as they were understood at the time the constitution was ratified.
- Originalists simply look into the original intent and the original context in which a legislation is drafted.
- The Supreme Court Justice Coney Barret identifies herself as an originalist.
- Much of the tone of the draft opinion in Dobbs is also clearly suggestive of the originslist tendencies within the Supreme court.
A Parade of horribles: Is contraception and same-sex marriage next?
For almost half a century abortion has been a divisive issue in the US. Though it is uniquely distinct from any other contentious issue, an end to the constitutional precedent set by Roe v Wade could unleash a seismic effect on the overall legal landscape.
- The draft opinion runs dangerously on the lines of literal interpretation and says a right to abortion is misconceived from the very start as the constitution makes no explicit reference to abortion rights. But this is when there’s a clear settled precedent set by the highest court of the land which says right to privacy implicitly protects a right to reproductive privacy. This is a five alarm fire.
- The far right conservative majority in the Supreme Court has a problem with obeying precedents. The burning down of Roe and the existing constitutional protection to abortion could potentially lead to what Senator Dick Durbin calls a culture of war putting free speech, contraception, same sex, inter racial marriage and other civil rights that define Americanism in jeopardy.
- Just like abortion, many other precious rights that were decided by Supreme Court decades ago are similarly premised on the principles of implied right. Thus ending Roe would naturally open floodgates that will pave the way for conservatives to argue their cases against family planning, LGBTQ rights, so in a matter of weeks and months after the official ruling deep red states will start enacting laws to outlaw contraception, same sex marriage and take them to courts to challenge them in the same manner now Roe is being taken down.
- For instance Conservative legislators are already proposing a reversal of Griswold v. Connecticut which protects the constitutional right to access contraception. The observations made about privacy in Griswold paved the way for the constitutional protection to same sex marriages.
Last-Ditch effort for a federal abortion legislation
The US senate is planning to vote on a legislation that they term as Bill 14- Women’s Health Protection Act to codify woman’s right to get an abortion into federal law. The effort is largely expected to fail as it requires 60 votes out of 100 in an evenly-divided Senate.
On the flip side senator Mitch McConnell has revealed the possibility of pursuing a federal ban on abortion if Republican secure control of the Congress in the coming mid term elections.
“If the leaked opinion became the final opinion, legislative bodies—not only at the state level but at the federal level—certainly could legislate in that area” McConnell said.
Conclusion
The leak is still a draft, not a refined final opinion. But contentious days to come as the people are anxiously awaiting the crucial decision on the future of roe v Wade.
In the event SCOTUS decides against Roe, it will not still impose a nation wide ban on abortion. Blue States will still allow legal abortions. But the abortion access will be threatened in deep Red states most of which have anti-abortion laws at state level. Thus Supreme Court’s final decision in July will not be the end of the matter. Abortion rights will go into mid term elections as the top concern among voters. All liberty-loving pro-choice women will keep loudly crying for their much preserved constitutional rights. They will fight back for their bodily autonomy, integrity and reproductive freedoms. Further originalist hard-right tendencies among Supreme Court Justices will force same-sex, abortion and privacy rights groups to join their hands in their fight for justice and other constitutional freedoms. But it will certainly be a hard fought battle. Only time will tell. Joan Baez famously said:
"The best antidote to despair is action”
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