Supreme Court draft opinion suggests Roe v. Wade reversal

national politics, Politics

Jakob Eiseman, Editor-in-Chief
Header Image: APNews

“The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision…” states a draft opinion by Justice Samuel Alito which was recently leaked from internal Court communications to policy news outlet Politico. “We hold that Roe and Casey must be overruled,” reads the draft. 

Before diving deeper into the draft and the claims made therein, it is important to state that this is a draft opinion. While the draft was confirmed to be authentic, it does not yet represent any official decision or confirmation by the Supreme Court. While it is likely that the voting process ended with the majority opinion lying with an overruling, or at least altering of abortion laws as this opinion was drafted at all, the voting results are still unknown, and an opinion cannot be officially made public until a majority of justices sign onto the opinion claiming that it accurately reflects their determinations on the matter, and a Supreme Court ruling can have no affect on law until the official opinion is made public. 

Just the facts

While justices have changed their final votes between preliminary voting and final opinion, there is nothing to suggest now whether that will or will not be the case.

There is some speculation as to why Justice Alito would be tasked with writing this opinion, leading some to suggest that the draft does not reflect true discussions, this piece will largely avoid speculation and focus just on the facts of Alito’s draft opinion, and what its implications would be if it were accepted as is.

As quoted above, the opinion contains several sections that outright denounce Roe v. Wade, a landmark Supreme Court decision from 1973 that has repeatedly served as precedent on abortion cases. The main stipulation of the case is that criminalizing abortion violated women’s right to privacy as protected by the Constitution. The opinion also suggests an overturn of Planned Parenthood of Southeastern Pennsylvania v. Casey, a 1992 case which made several changes to how abortion laws were interpreted in the United States, as well as instituting an undue burden standard into law that any state law that would impede a woman from receiving an abortion before their pregnancy progressed too far would be invalid.

Alito’s draft was first presented to the justices in February, but the information leak happened on Monday, May 2. The main repeated claim from the draft opinion is that Roe v. Wade protects women under a right that is not expressly protected by the Constitution. Claiming that the case has had “damaging consequences,” Alito calls for a full reversal, allowing for any state in the union to allow abortion procedures to take place within established frameworks, but also allowing states to place bans on the procedures or criminalize them.

Alito also hammers in on the idea of fetus viability, citing several critical works against Roe v. Wade and stating that one of the ruling’s weaknesses in regards to maternal health was in relation to its determination of “viability.” In the draft, he details the tenants of Roe v. Wade that directed state’s abortion regulation by trimester, stating that during the first trimester, the abortion should be approved by a physician, but gives the right to the pregnant woman to receive an abortion, during the second trimester, a state can regulate abortions by using maternal health laws and regulations at the state level, so long as it does not delay the procedure from happening until the window has passed and the third trimester grants states’ the right to ban abortions unless the pregnancy threatens the life of the woman herself.

Alterations have been made since, but using parts of Roe v. Wade as a reasoning for its overturn, Alito describes the framework set out by the ruling stating “Neither party advocated the trimester framework,” reads the draft, “nor should either party or any amicus argue that ‘viability’ should mark the point at which the scope of the abortion right and a State’s regulatory authority should be substantially transformed.” 

A concession that is made in the draft is that this overturning does not concern any other laws or rights other than those directly related to the termination of pregnancy, and that the precedent that would be set by the opinion cannot be applied to any other rulings or overturnings. 

What does it mean?

While Alito’s draft mainly targets Roe v Wade’s regulations for their constitutionality, reversing that ruling would likely result in a massive schism of states who ban or strictly regulate abortion procedures, and those that continue to allow them, likely along party lines.

The reasoning for the reversal is wholly political, but the ramifications should this draft come to fruition are medical, social, financial and societal in nature. If Roe v. Wade is overturned, the protections that women have held for years will vanish in states whose representatives are actively seeking to put an end to reproductive rights.

Several states have “trigger laws” which would ban abortion in almost all cases if the Supreme Court goes through with this draft, with some going into effect immediately and others having a ticking timer. Kentucky, Oklahoma, Louisiana and South Dakota are often looked to when discussions of abortion bans come up, as their trigger laws would ban abortion throughout the state immediately. 

It is important to note that almost every state in the union that has trigger laws or that has historically banned abortion makes medical exceptions should the life of the mother be at risk due to pregnancy. However, there is also a history of laws in these states interfering with treatment in any case, making it difficult, and forcing women to move across state lines to receive the care they need to survive. Very few abortion banning states currently have concessions related to pregnancies caused by rape.

A conversation has sparked as a result of this leaked document discussing the true tolls this reversal would take. Many point to the fact that if abortion bans are left up to the states, that wealthy women, or those with support, will be able to fly or be driven to a state that allows abortions and receive help, while those that are in dire financial situations will be unable to receive this care, even in the case that they were raped. 

Some have been pointing to a Tennessee bill proposed this spring that would allow citizens to sue anyone suspected of receiving or assisting in an abortion. Should Roe v Wade be overturned and bills like this passed in certain states, risky or illegal abortions would now carry an even greater risk. While this is a specific case, this law would also allow a rapist to take their victim to court if they abort the fetus in Tennessee.

According to a data analysis by NBC News, 21 states and/or territories would likely continue to protect abortion rights, nine would restrict abortions with various laws, including Pennsylvania, and 23 would ban abortion altogether or except in situations where it is medically necessary.


Editor’s note: Please allow concessions as we are currently in preparations for final exams and simply do not have the time to perform such an analysis ourselves. We implore you to read further on quality news sites to get the big picture, and just use this as a jumping off point for your understanding of the draft and its implications, not a whole summary.

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