At 8:32pm on Monday May 2, POLITICO released an article that leaked Supreme Court Justice Samuel Alito’s ninety-eight-page draft opinion to overturn the 1973 decision of Roe v. Wade and the 1992 Planned Parenthood vs. Casey, decisions that grant the constitutional right to an abortion.
The leak sent shockwaves across the nation, and the uproar of anger from women and people with a uterus has been profound. If the court rules to overturn the constitutional right to an abortion, states will have the authority to criminalize and ban abortion.
Before Roe v. Wade, thirty states prohibited abortions. Approximately twenty-five states are expected to either ban abortion entirely, or severely restrict the procedure.
The first draft majority opinion regards the Dobbs vs. Jackson Women’s Health Organization case. The Jackson Women’s Health Organization is the only abortion provider in the state of Mississippi. The case reviews Mississippi’s fifteen-week abortion ban. The law was proposed in 2018 but never went into effect because of an immediate legal challenge that made a federal appellate court block its enforcement.
The Mississippi law violates several Supreme Court precedents. The law bans abortions two months earlier than what Roe v. Wade allows. It also violates the 2016 Supreme Court case Whole Woman’s Health v. Hellersted ruled that states cannot ban abortions before a fetus is considered viable outside the womb, which is at 24 to 26 weeks. The ban does not have rape or incestual exceptions, only an extremely narrow exception for medical emergencies and fetal abnormalities. The court agreed to hear Dobbs vs. Jackson Women’s Health Organization in May of 2021. Mississippi asked the court to repeal its 1973 Roe v. Wade decision.
While the draft opinion is not the court’s final decision, it is a strong indication of the decision that the far-right court will make. Shortly after the leak, Chief Justice John Roberts released a statement authenticating the draft, “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.” Roberts also highlighted that the draft “does not represent a decision by the Court or the final position of any member on the issues in the case.” The Supreme Court is opening an investigation into the security breach. The Supreme Court has never released draft opinions to the public while a case is pending.
The court is not expected to rule on the case until June, thus there is still time for the court to change its mind, but with the far-right majority, the chance is slim. The justices appointed by Republicans, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett all voted to overturn Roe alongside Alito. The three Democratic appointees, Sonia Sotomayor, Stephen Breyer, and Elena Kagan are reportedly working on their own dissents. Chief Justice John Roberts’ opinion was not included in the draft opinion and has not yet been disclosed.
Justice Alito was nominated to the Supreme Court in 2005 by President George W. Bush as Justice Sandra Day O’Connor’s replacement. O’Connor was a moderate “swing voter,” and liberals at the time were concerned that Alito would make the court too conservative. Alito is a reliable conservative voter. He voted alongside other conservative justices in cases such as Gonzales v. Carhart (which upheld the federal Partial-Birth Abortion Ban Act), District of Columbia v. Heller (which upheld the right to bear arms), and Shelby County v. Holder (which went against a crucial provision of the 1965 Voting Rights Act).
Alito writes in his report that “Roe was egregiously wrong from the start” and that “We hold that Roe must be overruled.” His argument relies on the fact that the Constitution never mentions abortion, “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this Nation’s his- tory and tradition’ and ‘implicit in the concept of ordered liberty…’ The right to abortion does not fall within this category.” Instead of the court upholding a national precedent, Alito believes that “it is time to heed the Constitution” and allow elected representatives to deal with abortion.
The draft calls Roe’s original 1973 argument “exceptionally weak.” If the draft opinion votes hold strong in June, the decision will overturn the New Orleans based 5th Circuit Court of Appeals decision, which decided that Mississippi’s law violates the Supreme Court’s precedent. Alito called the effects of the Roe decision “damaging,” and even quotes liberals, such as Justice Ruth Bader Ginsburg, who expressed discontent with Roe’s reasoning. Bader Ginsburg wished that abortion was legalized through incremental approaches rather than a nationwide ruling. She also believed that Roe was not the best case to establish abortion rights.
Roe and Casey cited precedents such as interracial marriage with Loving v. Virginia, the right not to be sterilized without consent with Skinner v. Oklahoma, the right to contraception with Griswold v. Connecticut, and others, but Alito considers these references irrelevant. “None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. They are therefore inapposite. They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way.”
In his draft, Alito states that abortion is unlike any other right protected by the Fourteenth Amendment: “Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception and marriage, but abortion is fundamentally different.” Alito continues, “because it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘unborn human being.’”
What Alito wanted from Roe and Casey was proof that the Supreme Court has the authority to weigh this argument and decide abortion regulations in the States. Alito writes that “They have failed to make that showing, and we thus return the power to weigh those arguments to the people and their elected representatives.”
Before Chief Justice Roberts confirmed the authenticity of the draft, the Biden administration released a statement. The President wrote, “I believe that a woman’s right to choose is fundamental, Roe has been the law of the land for almost fifty years, and basic fairness and the stability of our law demand that it not be overturned.”
On May 3, the morning after the leak, Biden told reporters at Joint Base Andrews that the leaked draft is “quite a radical decision” that “concerns me a great deal that, after 50 years, we’re going to decide that a woman doesn’t have the right to choose.” He said that “If the rationale of the decision as released were to be sustained, a whole range of rights are in question.” During a press conference, The President took a moment to criticize former president Donald Trump’s supporters, “What are the next things that are going to be attacked? Because this MAGA crowd is really the most extreme political organization that’s existed in recent American history.”
During a speech at the EMILY’s List Political Action Committee Conference, Vice President Kamala Harris spoke out against the Supreme Court’s decision. “Women’s rights in America are under attack.” Harris said that if Roe is overturned, it would be a “direct assault on freedom. On the fundamental right of self-determination to which all Americans are entitled.”
“How dare they,” Harris exclaimed, “How dare they tell a woman what she can do and cannot do with her own body? How dare they? How dare they try to stop her from determining her own future. How dare they try to deny women their rights and their freedoms.”
Democrats currently have few options to protect Roe. In Biden’s initial statement, he states that the country needs “a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law.” Senate majority leader Chuck Schumer urged support for the measure, “If we do not take a stand now to protect a woman’s right to choose, then mark my words, it will be open season, open season on our God-given freedoms.”
On May 11, Democrats in the Senate attempted to advance legislation that would codify Roe into federal law, but it was blocked by Republicans. The Democrats needed 60 votes to overcome the filibuster, but the final vote was 49-51, with conservative Democrat Joe Manchin voting alongside Republicans. Vice President Harris told reporters outside the chamber that “Sadly the Senate failed to stand in defense of a woman’s right to make decisions about her own body.” The Supreme Court and Republican leaders are going against public opinion. CNN recently conducted a poll led by SSRS which showed that 66% of Americans do not want Roe overturned.
The main concern for many is the ripple effect the potential overturn will have. Thirteen Republican states have trigger laws that would make abortion illegal right after the court’s decision. Texas’ Governor Gregg Abbot signed a law in June that states if Roe v. Wade is overturned, thirty days later nearly all abortions in Texas will be illegal. Doctors who violate this ban would face up to life in prison. In contrast, fifteen states and the District of Columbia have laws that protect abortion rights regardless of what the Supreme Court decides.
Planned Parenthood’s CEO and president, Alexa McGill Johnson, released a statement. She wrote that “This leaked opinion is horrifying and unprecedented, and it confirms our worst fears.” Johnson reaffirmed that Planned Parenthood is committed to supporting reproductive rights, “Understand that Planned Parenthood and our partners have been preparing for every possible outcome in this case and are built for the fight. Planned Parenthood health centers remain open, abortion is currently still legal, and we will continue to fight like hell to protect the right to access safe, legal abortion.”
Despite Alito writing that “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” many are concerned for what this means for same-sex marriage. The draft’s argument also leaves a gray area in Alito’s assurance about other precedents. The Constitution does not address the right to an abortion. It also does not address the right to same-sex marriage, gay intimacy, and contraception. If abortion rights can be rescinded, so can these rights. During arguments for Dobbs v. Jackson Women’s Health Organization in December 2021, Justice Sonia Sotomayor argued that “I just think you’re dissimilating when you say that any ruling here wouldn’t have an effect on those.”
The president of Gay & Lesbian Alliance Against Defamation (GLAAD), Sarah Kate Ellis, released a statement, “The attack on Roe v Wade coming out of the Supreme Court is not just an assault on abortion rights — it’s an assault on all Americans, especially those of us in marginalized communities. None of us are safe from the extreme anti-women and anti-LGBTQ ideology that now dominates this Court, and we must fight back in every way possible.” The statement also addresses the 222 state bills proposed this year that target LBGTQ+ people, and the 32 proposed state bills that target transgender youth healthcare.
State lawmakers have already announced their support to severely restrict or ban contraceptives if Roe is overturned. Laurence Tribe, a constitutional law professor at Harvard, told TIME that “It’s absolutely clear that the Supreme Court’s decision…would…open the door to restrictions on birth control, same sex marriage, sexual intimacy, and other forms of intimate personal decision-making.” To anti-abortion groups, contraception is seen as equivalent to an abortion, because it prevents pregnancy after unprotected sex.
On May 4, Louisiana Republicans advanced a bill that would classify all abortions as homicides. The bill also focuses on targeting abortion providers. The bill would give constitutional rights to a person “from the moment of fertilization,” and therefore might restrict in vitro fertilization and emergency contraception. The bill’s sponsor, Republican Danny McCormick said that “We’ve been waiting 50 years to get to this point.”
If Roe is overturned, a trigger law in Arkansas would ban most abortions and emergency contraceptives. Representative Ashley Hudson warns that “If this draft becomes official in June, a newly passed Arkansas law will immediately outlaw access to abortions for Arkansas women and children who are victims of rape or incest.” The trigger law threatens doctors and medical professions with up to ten years in prison. Sexual assault survivors, including minors, will not be granted exceptions to seek an abortion.
Idaho’s trigger ban would make abortions a felony with up to five years in prison. In March, legislators passed a bill that bans abortions once a fetal heartbeat is detected and allows family members to sue medical professionals who perform abortions. Kentucky, Missouri Louisiana, and North Dakota would ban abortions and make performing the procedure a felony, but have medical, rape, incest, and lifesaving exceptions. Wyoming, Utah, Texas, Tennessee, South Dakota, and Oklahoma would make abortions illegal with restricted exceptions. If the court sides with Mississippi in June, thirty-six million people of reproductive age will have no access to abortions.
Texas’ recent abortion law that was enacted September 1, 2021, sparked national outrage. In a 5 to 4 decision, the Supreme Court refused to immediately block the law. With the Supreme Court’s current ruling on Dobbs v. Jackson Women’s Health Organization, the Texas abortion law is a fearful example to many for what is to come. The law bans abortions after six weeks with no exceptions for pregnancies due to rape or incest. The law is unique with its use of private individuals to enforce the law, which makes the law harder to overturn in court. An individual that reports a person who aided or abetted in an abortion is entitled to $10,000 and covered legal fees if they win the case.
The Fieldston campus felt heavy on Tuesday May 3, the morning after POLITICO released the draft opinion. Students have strong opinions about the news, mostly consisting of fear and outrage. Catherine Hou (Ⅵ) is “very angry” and listed eight points to support why. “1. It just stops safe abortions. 2. It hurts Women of Color the most. 3. It perpetuates the class issues in healthcare. 4. The savior complex is unbelievable from men who do not suffer the same repercussions of an accidental or forced pregnancy. 5. Where does life begin to get defined because if a two-week-old fetus is alive then every condom is also taking the potential of life too. 6. Women are being forced into a time in which their body is not their choice. 7. When the men who support this have to push a baby out of their own anatomy, then they can talk to us women about it. 8. It creates a stigmatization that sex and safety, are also responsibilities of women.”
Marley Scotkin (Ⅲ) recalled how the news made her feel. “I remember the day that it was released, and how I was physically shaking on the bus.” She worries that “Now that one of these important cases is going to be overturned, and the Supreme Court is majority republican, they might be able to overturn other policies as well. Scotkin writes that “It’s difficult to tell what will happen next, and the lack of knowledge is terrifying.”
Alexa Citron (Ⅲ) writes that “when this news broke, I saw my sister wilt beside me.” She references the impact that Roe has had on how “the American population approaches abortion and reproductive rights.” Citron asks many questions that unfortunately no one yet knows the answers to. “Not only is overturning this case a problem for the reproductive rights movement but what we fail to realize is that this monumental decision was a precedent. What does this say about the power of history? The power of civil procedure and legality regarding this situation? If precedents can’t be sustained, what can be? Justice Alito may have single-handedly undone fifty years of progress. Who would’ve thought being a female could be so scary?”
Hannah Reing (V) says that they “cannot express my disappointment and fear for the future.” They emphasize that “the right to have an abortion is not just a women’s issue,” and that “not only women have babies. Nonbinary and trans folks may become pregnant and seek an abortion because of dysphoria, among all other possible reasons for an abortion. There is supposed to be no gender discrimination so why are abortions off the table in situations like these?”
Reing put it bluntly, “Overturning Roe v. Wade will kill! This is not the way to limit abortions, just increase death.” They argue that if the court is going to force births, then it must also enforce support for the parent and child. “I want to see sufficient foster care funding. I want to see free healthcare. I want to see improved education systems and mental health support and special services in schools. If you are going to force people to have their babies, make sure the baby is taken care of after birth.”
Francesca Grossberg (V) is “absolutely appalled.” She writes that the decision “is putting the lives of millions of people with uteruses at risk and further exacerbating the vast inequality in American society.” To Grossberg, it feels as though we have re-entered the 1950s and 1960s. “Frightened doesn’t begin to describe” the way that she feels about the decision.
Talia Gold (IV) expressed that “Reproductive rights are human rights, and the fact that ours are being threatened in 2022 is an absolute abomination.”
Americans will likely have to wait about another month, until June, to hear whether the Supreme Court decides to uphold the precedent they set in 1973 or revoke the reproductive rights of tens of millions. The next month will be harrowing for millions.
(First in a series of articles)
