On Tuesday, a leaked initial draft opinion from the Supreme Court of the United States (SCOTUS) indicated that the apex court will vote to overturn the landmark Roe v. Wade judgement. This initial draft written in February has a majority support that could potentially mean striking down abortion rights across the United States.
The draft opinion was written by Justice Samuel Alito, supported by four other Republican-appointed judges, and opposed by three Democrat-appointed judges. This leak subsequently sparked protests outside the SCOTUS, with thousands of people expressing their dissent, taking to the streets in solidarity. There are two groups of people gathered outside the SCOTUS today, abortion-rights and anti-abortion protesters.
Conservative justices who have voted in favour of repealing the ruling are Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, after the initial arguments held back in December. The three Democrat-appointed justices to oppose it were Stephen Breyer, Sonia Sotomayor, and Elena Kagan. The opinion of the ninth justice, Chief Justice John Roberts, remains unclear. Notably, this is a draft opinion, and the justices can change their votes before the final ruling.
Roe v. Wade is a landmark judgement that has kept laws that would restrict access to safe abortion at bay for nearly 50 years. Lawmakers in several states have reportedly made attempts to enact similar laws in their respective states. According to the ruling, abortion is allowed up to the point of foetal viability, which back in 1973, was around 28 weeks (seven months). Essentially, no restrictions could be placed on abortions upto the first trimester, while certain restrictions could placed to protect the mother’s health during the second. As the foetus becomes viable by the third trimester, the court declared legal prohibiton of abortions. In most countries, the length of a pregnancy is calculated from the person’s recent menstrual period, as many cannot identify their pregnancy until after six weeks. Foetal viability has repeatedly been used as a division between the rights of women and the right of the unborn foetus.
The justices have reportedly referenced another judgement in this context – the Planned Parenthood v. Casey verdict of 1992 – which largely upheld the precedent set by Roe v. Wade. “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.” added the initial draft. “Far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division,” wrote Justice Alito in the initial draft. He argues that Roe and Casey “must be overruled” as the constitution does not make any references to abortion, and no such right is implicitly protected by any provision.
At the time, Roe’s argument was based on the “right to privacy”, which was broad enough to include a woman’s decision to get an abortion. This case was won by a majority of 7-2. The draft asserted that the SCOTUS’ work is to interpret the law, and apply the longstanding principles. “Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives,” read the draft.
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Amid concerns over the potential striking down of Roe v. Wade and the precedent it sets for safe abortions in the US, many have expressed shock over the leak itself, as drafts are created months in advance based on negotiations among the judges. This is the first time that an opinion of the court on a pending case has been leaked prior to the official ruling, which takes place in the final days of the court’s formal session in June. Justice John Roberts has termed the leak “singular and egregious breach of trust”.
According to a poll, most Americans want the apex court to uphold Roe, including US President Joe Biden, who has urged voters to defend the access to abortion. This comes months before the country is set to conduct its mid-term elections. President Biden has called this decision “radical” and a “fundamental shift in the American jurisprudence”. While talking to the press in Washington, he added, “I believe that a woman’s right to choose is fundamental.”
Overturning the current legislation would allow legislatures in over 20 states to ban or place stringent restrictions on the access to abortion.
