Abortion rights advocates protest the Supreme Court’s possible push to overturn Roe v. Wade.// Photo courtesy of Senate Democrats.
A leaked document obtained by Politico and published on Monday, May 2, revealed a draft majority opinion that circulated the Supreme Court in February concerning a possible push to overturn the 50-year precedent of Roe v. Wade, which federally protects the right to abortion services. The final opinion has not been released and will not be expected until late June.
“Roe was egregiously wrong from the start,” Justice Samuel Alito penned in the initial draft. “We hold that Roe and [Planned Parenthood v. Casey] must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision … It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
Justice Alito stated that implied rights that are not mentioned outright in the Constitution “must be deeply rooted in this nation’s history and tradition” in order to be protected by the Supreme Court. Of the nine sitting justices, Alito is supported by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett in overturning Roe v. Wade. Judge Ketanji Brown Jackson will assume her role in the Supreme Court when Justice Stephen Breyer retires this summer.
“I wasn’t worried about the Supreme Court when the seats were equal,” said Stella Craine, a freshman music business major. “Three of the seats were filled during Trump, so we have a disadvantage now. And I think that’s why this is happening.”
Now, reproductive rights advocates across the country are considering steps moving forward in the event that Roe v. Wade is overturned. Should the majority opinion vote to abolish the precedent, reproductive healthcare laws would be decided by the states, almost half of which already have some form of “trigger laws” in place that will outlaw abortion immediately following the ruling. These laws, activists argue, will most harshly affect low-income communities and communities of color, reflecting on the fact that more than half of Black Americans live in the South where these laws are poised to pass.
Shining light on the expected backlash from the 59% of the population who support abortion being legal, workers assembled “nonscaleable” fences around the Court in preparation for protests following the leak.
“This will make [abortion services] more dangerous,” said Alice Patry, a sophomore women’s studies major. “In outlawing safe abortions, this forces people to turn to unsafe options.”
The draft opinion comes in wake of the Court’s deliberation of Dobbs v. Jackson Women’s Health Organization, a case that concerns Mississippi’s ban on most abortions at 15 weeks of pregnancy. The Roe v. Wade precedent currently allows abortion services to be performed up until viability, typically at 24 weeks.
The long term ramifications of the opinion are far more significant than the leak itself, according to James Sample, a Hofstra law professor. “This represents a constitutional earthquake,” he said. “I think Justice Alito’s sentiments are disingenuous. A woman’s right to choose is and has been embedded in our constitutional law structure for fifty years. [In the past] we’ve seen deeply rooted discrimination practices be contracted, where the law seeks to expand inherent rights; this move represents a significant contraction of rights.”
“I believe that a woman’s right to choose is fundamental,” President Joe Biden said in a statement on Tuesday. “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.”
The president went on to say that the executive’s Gender Policy Council had been preparing options for an administrative response to ongoing attacks on abortion rights following the enactment of Texas law S.B. 8.
“We will be ready when any ruling is issued,” the statement said while urging citizens to vote for pro-choice officials in upcoming elections in order to codify Roe v. Wade into law, a promise Biden made during his initial campaign.
“This betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed,” said Supreme Court Chief Justice John Roberts, who issued a statement on Tuesday saying he had launched an investigation into the source of the leak. “The work of the Court will not be affected in any way. This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here.”
