The Supreme Court is preparing to overturn the landmark Roe v. Wade decision that protects the right to an abortion, according to a draft opinion obtained by Politico.
The decision could still change before the final decision is released, likely by the end of June. But if this draft opinion becomes the ruling of the court, the decision would dismantle nearly 50 years of precedent and usher in a new era for reproductive rights in which the legal status of abortion is decided by individual states.
The draft opinion, written by Justice Samuel Alito, was published by Politico Monday night in a stunning breach of Supreme Court protocol, and provided the first glimpse into the much-anticipated Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization, which could become the most significant abortion case in a generation.
Here’s everything you need to know about the draft opinion, the Supreme Court process and what would happen if Roe v. Wade is overturned.
What did the Supreme Court say about Roe v. Wade?
In the 98-page draft decision, Alito offered a harsh repudiation of the Supreme Court’s previous landmark rulings on abortion, including the 1973 case Roe v. Wade and subsequent 1992 case Planned Parenthood v. Casey, which upheld the constitutional right to an abortion established in Roe. “Roe was egregiously wrong from the start,” Alito wrote. “Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”
According to Politico, Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett—all Republican-appointed—had signed on to Alito’s opinion. Liberal Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan planned to dissent, Politico reported, and it’s unclear how Chief Justice John Roberts planned to vote.
“The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision,” reads the draft opinion. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
The opinion also states that the right to abortion is not protected by the 14th Amendment’s Due Process Clause, which guarantees some rights not mentioned in the Constitution and is the backbone of several other major Supreme Court rulings, including the legalization of same-sex marriage in Obergefell v. Hodges, the right to birth control in Griswold v. Connecticut, and the criminalization of anti-sodomy laws in Lawrence v. Texas. Alito said these rights have to be rooted in the nation’s history and tradition in order to be protected by the 14th Amendment.
“The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions,” Alito wrote, citing that abortion had once been a crime in every state. “Roe either ignored or misstated this history, and Casey declined to reconsider Roe’s faulty historical analysis. It is therefore important to set the record straight.”
Will this draft be the final decision?
The draft opinion is almost three months old, and early drafts of Supreme Court opinions often change before the final decision is announced.
When a draft opinion is circulated among the justices, they often weigh in and disagree with certain sections. “It’s an iterative process,” says Melissa Murray, a law professor at New York University.
Some legal experts and abortion-rights activists believe the Supreme Court’s final verdict could be similar to the one published by Politico, given that the court’s conservative majority had previously signaled a willingness to dramatically curtail abortion rights based in their questioning during oral arguments in Dobbs.
But the leak of the draft opinion may itself affect the final outcome. “Whether this is the actual judgment of the court I think remains to be seen, and it’s probably why we’ve gotten the leak,” says Murray.
When is the final ruling expected?
The Supreme Court is set to make a final ruling on the case before its term concludes at the end of June.
Until then, abortion remains legal in every state.
What happens if Roe v. Wade is overturned?
If Roe v. Wade is overturned, the legal status of abortion would be decided by individual states.
Abortion would likely remain legal in about half of U.S. states, but legislatures in at least 22 states—mostly in the Midwest and South—would almost certainly move to ban or substantially restrict access to abortion. Some women in these states would have to cross state borders for the procedure, while others may be able to access abortion pills, though some Republican-led states are also attempting to crack down on access to this at-home alternative.
Per the Center for Reproductive Rights, a global legal advocacy organization that tracks state abortion laws, the following states are likely to ban abortion if Roe is overturned: Alabama, Arizona, Arkansas, Georgia, Idaho, Indiana, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia and Wisconsin. Some abortion-rights groups believe Florida, Iowa, Montana, and Wyoming could also be added to the list.
What are ‘trigger laws’?
So-called “trigger laws” were designed to make abortion illegal in states as soon as the Supreme Court allowed it.
So far, legislators in 13 states have passed these laws, which will take effect automatically or by swift state action if Roe is overturned. These states are: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, and Wyoming.
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