Researched by: Sara Varghese & Elisha Benny

First, an intro to Roe v. Wade

In 1973, Roe v. Wade became the landmark Supreme Court judgement that established a woman’s right to have a safe abortion—which was illegal in the United States until that time. It did not establish any right to have an abortion—but rather recognized that such a right falls under every citizen’s right to privacy. Even the right to privacy is not spelled out in the US Constitution, but has been interpreted as being an integral part of the broader fundamental right to liberty.

Terms and conditions: The ruling established clear rules and limitations on abortion rights—based on the “viability line,” i.e. when a foetus becomes viable outside a woman’s body. 

• During the first trimester, a state cannot regulate abortion beyond requiring that the procedure be performed by a licensed doctor in medically safe conditions.
• The state can regulate abortion in the second trimester if it impacts the woman’s health.
• The state can ban all abortions in the third trimester unless the pregnancy endangers the woman’s health. At this point, the state’s right to protect potential life outweighs the woman’s right to privacy.

Key point to note: Less attention is paid to the 1992 ruling in Planned Parenthood v. Casey. While it upheld women’s equality as central to the abortion right—unlike Roe—it introduced a different criteria to determine whether an abortion law was valid or not. This new standard: moving away from trimesters to focus solely on viability—the point at which the foetus can survive outside the womb.

The ‘heartbeat’ laws: The anti-abortion groups have tried therefore to redefine ‘viability’ in their model legislation—which has inspired actual laws passed in various states. The core assertion: “While not the beginning of life, the heartbeat is the universally recognized indicator of life.” This has in turn allowed states like Texas to outlaw abortions after six weeks—when a doctor can typically determine “a flicker of cardiac motion”—without exceptions for rape or incest. FYI: most women don’t even know they are pregnant at this point. 

What do Americans want? Almost from the very outset, the Supreme Court ruling became a lightning rod for a fierce and often ugly battle over societal values. Over the decades, there has been relentless political and legal pressure to undo the precedent set by Roe. How big is the cultural divide? In 2020, only 13% of Republicans said abortion should be legal in all circumstances—compared to 49% of Democrats. 

OTOH: That vast partisan divide hides a broader consensus. A recent poll showed that 61% Americans oppose overturning Roe, while only 36% support it. In a CNN survey taken in January, the split was 69% opposed and 30% in favour. Americans are not in favour of new laws that dramatically restrict abortion either. The latest Washington Post-ABC News poll shows that 58% oppose making abortion illegal after six weeks—while 57% oppose making it illegal after 15 weeks.

If you’re curious about India: The Medical Termination of Pregnancy Act legalised abortion in 1971—two years before Roe. Until then, abortion under any circumstances—except if the pregnancy posed a danger to a woman’s life—was illegal in India. The MTP Act, however, did not establish any right to abortion—and made it conditional on a doctor’s approval. It allows a woman to get an abortion within the first 12 weeks if a medical practitioner diagnoses grave danger to the pregnant woman’s physical and mental health. The conditions imposed by MTP were liberalised last year, extending that window to 24 weeks. But in sum, Indian women still don’t have the right to an abortion on demand. The power is still vested in the doctor who has to sign off on the procedure.

Ok, tell me about this leaked Supreme Court ruling…

The case: involves a Mississippi law passed in 2018—which bans all abortions after 15 weeks—except in cases of a medical emergency or fetal abnormality. The state’s only abortion provider—the Jackson Women’s Health Organization—challenged the law, suing Mississipi’s health officer Thomas Dobbs. The state federal court blocked the law—ruling that it violated the precedent set by Roe v. Wade—and the case made its way to the Supreme Court—which is slated to deliver a ruling in June. 

The leak: Yesterday, Politico published a 98-page draft of the Court’s ruling—which is unprecedented in US legal history. It is a copy of the majority opinion written by Justice Samuel Alito. 

Key quotes: The majority opinion plans to overturn all precedents that established the right to abortion: “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.” Also this:

“Roe was egregiously wrong from the start. 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.”

And this: “The Constitution makes no reference to abortion and no such right is implicitly protected by any constitutional provision.” 

The votes: There are nine justices on the Court—and five secures a majority. A source told Politico that the ruling has the vote of four other justices—Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. All of them were appointed by Republicans, and three of them by Donald Trump. Three plan to dissent: Stephen Breyer, Sonia Sotomayor and Elena Kagan. And no one knows how Chief Justice John Roberts will vote. In any case, his vote will not move the needle one way or another—if the current alignments remain.

Wait, so who leaked it? 

We don’t know yet—and the Court is already hunting for suspects. But outraged conservatives are pointing the finger at a rogue liberal inside the Court, with one leading Republican declaring:

“One of the court’s most essential and sacred features was smashed just to buy the outrage-industrial complex a few extra days to scream nonsense about what the court might rule.”

OTOH: Many legal experts think the leak benefits the conservatives—trying to make sure that none of the five in favour start to wobble:

“In terms of who leaked it and why, it seems much more likely to me that it comes from the right in response to an actual or threatened defection by one of the five who voted to overturn Roe. Leaking this early draft makes that more costly for a defector because now people will think that they changed their vote after the leak in response to public outrage.”

Others point out that the leak shifts the focus from the constitutional right to abortion “to the question of Supreme Court secrecy and the danger of leaks to the legitimacy of the process”—which again helps abortion foes bracing for backlash. 

So is this final—Roe is dead?

This is a draft of the majority opinion—which is routinely circulated among all justices. But it often changes after consultation among the justices—and in some cases a judge can change their vote altogether. So none of this seals a final outcome—as Chief Justice Roberts made clear. He insisted the draft “does not represent a decision by the Court or the final position of any member on the issues in the case.”

The John Roberts factor: The Wall Street Journal recently speculated that the Chief Justice is/was hoping to carve out a “middle ground”—to uphold the Mississippi law without overturning Roe. And perhaps woo one of the five justices supporting Alito to his side—to get a 6-4 majority. The lawyers opposing the Mississippi law also point to his established aversion to dramatic changes in the law—having once written: “Fidelity to precedent—the policy of stare decisis—is vital to the proper exercise of the judicial function.” OTOH, much of Roberts’ legal career has been spent opposing abortion rights.

The Democrats plan: is to call for legislation that would codify the right to abortion as the law of the land. But they simply don’t have the votes for it. Given their current numbers, they can get a simple majority of 51 in the Senate—but the bill would be blocked by a filibuster. This is when opposing senators keep talking at length to prevent a bill from going to a vote—which is exactly what the Republicans will do. You need 60 votes to override a filibuster. So a vote to legalise abortion would first require a bill that scraps the filibuster—which again looks remote. 

Plan B: is to use the Supreme Court ruling to energise the base—and sweep the upcoming midterm elections to secure the required 60 votes to override a filibuster. Senate Majority Leader Chuck Schumer declared: “To the American people, I say this: The elections this November will have consequences, because the rights of a hundred million women are now on the ballot.” The Democratic party raised $7 million just hours after the leak.

FYI: Women’s and civil rights groups are already planning country-wide rallies to protest the upcoming ruling. So expect fireworks in the weeks to come.

But what happens if Roe is overturned?

Contrary to popular misinterpretation, abortion does not become illegal in the US. It stops being a constitutional right—which means different states can put in place their own abortion laws. An NBC News analysis estimates it will be banned in at least 23 states—but the Guttmacher Institute puts that number at 26. In other states, there will be new restrictions—while blue states like California will move to codify abortion rights as state law. Here’s what it may look like:

Abortion as privilege: The ruling would transform abortion from a right to a privilege—afforded to women in liberal states, and those who can afford to travel out of red states to get one. A landmark study compared women who received an abortion with women who were denied one—because they were just past the cutoff date: 

“The study found that women denied the procedure were more likely to experience negative health impacts—including worse mental health—than women who received one. The former were also more likely to face worse financial outcomes, including poor credit, debt and bankruptcy.”

And these effects are much more likely to be borne by people of colour and marginalised, low income women. And many live in red states likely to ban abortion, More than half of the nation’s Black population lives in the South—which also is home to a significant number of Hispanic women. The Plains states like Oklahoma also have a large Indigenous population. As one pro-choice advocate explains:

“This will be a giant and larger hurdle placed in front of them. Most people who seek abortion care already have children. And they may not have time off work, access to child care, the things they need to be able … to leave their community to get constitutionally protected health care.”

The bottomline: We seem to accelerating backwards—right back into the 20th century—pandemics, cold wars and now abortion bans. What’s next? The Great Depression?

Reading list

• Politico has the original leaked draft—while CNN offers a broader overview. 
• Vox offers a good analysis of the draft ruling. 
• New York Times has more on the leak—and what it tells us about the Supreme Court. 
• New Yorker looks at whether the end of abortion rights will also affect the broader right to privacy—which has implications for gay marriage. 
• Reason looks at what the draft ruling gets wrong about “unenumerated rights”—those not clearly spelled out in the Constitution. 
• US Today has more on the impact of a Roe reversal on the most vulnerable groups. 
• The Guardian looks at how the ruling will make the US an outlier in a world moving towards embracing abortion rights.
• NBC News reports on the newly energised Democratic base.
• New York Times has an excellent interactive feature that lays out just who gets an abortion in the US.