Publicized Supreme Court Opinion Draft Signals the Impending Overturning of Roe v. Wade
By: Sophene Avedissian
Roe v. Wade, the landmark decision that protects a woman’s right to choose to have an abortion without government involvement, has been the topic of debate for years on end. Not only does it remain a heated topic, but its precedent has become threatened.
On May 3, a leaked opinion draft from the Supreme Court detailing the imminent overturning of Roe v. Wade was obtained and published by POLITICO. While the Supreme Court has confirmed the draft’s authenticity, the Court has also explained that the decision is not final. However, if their ruling is finalized, states would be given the control to restrict or ban abortions.
Roe’s Legal Foundation
Many scholars believe that the Supreme Court’s initial ruling on Roe made it susceptible to frequent attacks: the decision announced a broad constitutional right that is not explicitly written in the Constitution. This point was emphasized in the leaked opinion draft. “The Constitution makes no reference to abortion and no such right is implicitly protected by any constitutional provision,” Justice Samuel A. Alito Jr. wrote. He also added that Roe’s “reasoning was exceptionally weak.”
While this opinion was described as a threat to reproductive rights by major media outlets, it was not only pro-life activists and conservatives who expressed criticism about the initial ruling. Supreme Court Justice Ruth Bader Ginsburg, an outspoken supporter of women’s rights, was also one of those who saw fundamental issues in Roe v. Wade.. She considered Roe v. Wade a “storm center because the court ventured too far in the change it ordered.” Justice Ginsburg believed that the court’s ruling was too broad and “halt[ing] a politic process that was moving” to legalize abortion.
The Court’s Reasoning
Justice Harry A. Blackmun, a former Justice of the United States Supreme Court, wrote the majority opinion in Roe v Wade. The ruling was based on the idea that the Constitution protects an individual’s right to privacy, a right implied by the 14th amendment. Blackmun wrote that though the Constitution “does not explicitly mention any right of privacy,” its protection for one’s own liberty and privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
In the leaked opinion, however, Justice Samuel Alito argues that abortion was not considered a “fundamental right” when the 14th amendment was passed. “Roe expressed the ‘feel[ing]’ that the Fourteenth Amendment was the provision that did the work, but its message seemed to be that the abortion right could be found somewhere in the Constitution and that specifying its exact location was not of paramount importance,” Alito wrote.
Similarly, in December 2021, Justice Kavanaugh, whose confirmation hearing was marked by accusations of sexual misconduct, said, foreshadowing the possible overturn of Roe v. Wade: “The Constitution is neither pro-life nor pro-choice on the question of abortion, but leaves the issue for the people of the states or perhaps Congress to resolve in the democratic process.”
“The Symbol of a Major Backlash”: Supporter of Abortion Rights Remain Concerned
Over the last few years, several countries with large Catholic populations have been making abortion laws more lenient. Ireland legalized abortion in 2019, and Argentina legalized abortion in 2020. Advocates for legalizing abortion warn that some governments across the globecould use the United States’ overturning of Roe to justify great changes in abortion rights.
Amnesty International's secretary-general, Agnès Callamard, explained in a statement, “Any regression in protection of the right to abortion would not only stand to damage the global perception of the United States; it would also set a terrible example that other governments and anti-rights groups could seize upon around the world in a bid to deny the rights of women, girls and other people who can become pregnant.”She added that “overturning Roe v. Wade would become the symbol of a major backlash all over the world, putting recent progress at risk and endangering the health and lives of millions.”
According to the World Health Organization, restricting access to abortion does not decrease their numbers - it only makes this normally safe procedure extremely dangerous due to the poor quality of medical care in clandestine facilities.
After the 2021 Texas law that banned abortion after the moment a doctor can detect a fetal heartbeat, the number of out-of-state women seeking to terminate their pregnancies at Planned Parenthood clinics in Southern California has quadrupled, according to Planned Parenthood.
Supporter of abortion rights point out that if Roe v. Wade is overturned, women of means will be able to travel to states with lenient abortion laws while those of lower income groups will be hit the most.
According to the Pew Research Center, 61% of Americans believe abortion should be legal in all or most cases. Support for Roe v. Wade is the highest among religiously unaffiliated Americans and Democrats, 84% and 80% respectively. But 38% Republican and 60% Republican-leaning voters support abortion rights, too.
While the majority of the country remains in favor of abortion rights, the current make up of the Supreme Court does not. After Donald Trump’s third nominee to the Supreme Court was confirmed, it became as conservative as in 1950 for the first time in seventy years.
President Biden warned that once the Supreme Court overturns this landmark case, “other basic rights” will be jeopardized. “It would mean that every other decision relating to the notion of privacy is thrown into question. If what is written is what remains, it goes far beyond the concern of whether or not there is the right to choose. It goes to other basic rights ... who you marry, whether or not you decide to conceive a child or not, whether or not you can have an abortion, a range of other decisions,” he said.
The Supreme Court is expected to decide on Roe v. Wade in the beginning of June 2022. Even if the initial ruling is overturned, the Congress and local legislatures can still intervene. President Biden has already announced that his administration’s response to such a decision will be national legislation that “codifies Roe''. Therefore, it is certain that reproductive rights will remain a central topic of political debates, shaping the upcoming midterm races.