(Featured photo provided by Alex Brandon/AP)
On Monday, Politico obtained and leaked an initial majority draft opinion written by Supreme Court Of The United States (SCOTUS) Justice Samuel Alito. In the 98-page draft, which was originally circulated throughout the court back in February, it’s evident that the Supreme Court has decided to strike down the 1973 Roe v. Wade case, which guaranteed the right to abortion to women nationwide. This is the first time in the court’s modern history in which the draft decision has been released to the public while the case it was responding to was still pending.
The decision isn’t final, however, as it’s still just a draft and Justices can change their choice until they make a formal opinion. The draft represents a majority opinion, meaning that at least 5 of the 9 Justices voted on overturning Roe back during oral arguments in the case of Dobbs v. Jackson Women’s Health Organization on December of 1st of last year, which was a challenge to Mississippi’s 15-week abortion ban. In the case, the state asked the court to reverse the Roe v. Wade ruling as well as the Planned Parenthood v. Casey ruling of 1992, that together secure abortion rights. “We hold that Roe and Casey must be overruled,” stated the draft. “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely–the Due Process Clause of the Fourteenth Amendment.”
Alito also quotes his colleague in the draft, Brett Kavanaugh, who stated that the Plessy v. Ferguson ruling (which allowed for racially segregated schools as long as they were ‘equal’) was “egregiously wrong” ever since it was first decided back in 1896. Alito states that this phrase could be applied to the Roe ruling, which he says was extremely flawed. Saying the Roe ruling is akin in terribleness to one of the most controversial topics in history is already causing heated debate, but it doesn’t stop there. Alito also claimed that some of the early supporters of abortion rights shared some “unsavory” views of eugenics. “Some such supporters have been motivated by a desire to suppress the size of the African American population,” wrote Alito. “It is beyond dispute that Roe has had that demographic effect. A highly disproportionate percentage of aborted fetuses are black.” However, Alito also says that he isn’t trying to tarnish the reputation of anyone, but is simply just bringing the point up. “For our part, we do not question the motives of either those who have supported and those who have opposed laws restricting abortion,” he wrote.
If the decision to overrule the case does go through, it doesn’t necessarily mean that the right to abortion will be outlawed entirely. What will happen is that details regarding the right to abortion will be handed off to state legislatures to decide for themselves. However, many of the Justices who voted against Roe were conservatives, and it’s expected that many Republican-led states might start periodically adding limits on abortion, or perhaps just banning it altogether. Kentucky and a few other red states just passed a fifteen-week ban on abortion, and some are looking to implement that ban even earlier in pregnancy.
Due to this, many citizens who live in red states but can’t get the abortion they want will have to turn to out-of-state operations in more Democratic-led states, which are currently debating on proposals that make access to abortion easier. For example, Connecticut’s legislature just recently approved a proposal making abortions in the state easier, and also giving protection to abortion-provider companies from states that don’t allow them. Other typically blue states such as California and New York are also considering similar proposals.
As for purple states that don’t particularly lean on one side or the other, it’s expected that these states might take an approach that benefits both sides. One solution might be not banning the practice outright, but still implementing a ban a bit later in the pregnancy somewhere close to 23 weeks.