The leaked preliminary draft decision by the Supreme Court of the United States (SCOTUS) that could overturn the 1973 Roe v. Wade decision (which we reported on previously) has created quite a stir along with a great deal of confusion.
Family Watch’s Peter Sprigg, our new Director of Research and Advocacy, provides the following insights.
Contrary to popular opinion, if the leaked SCOTUS opinion written by Supreme Court Justice Samuel Alito remains unchanged and Roe v. Wade is overturned this summer, this will NOT make abortion illegal throughout the United States.
Instead, overturning this law would return full authority to determine abortion policy back to each of the fifty states.
For example, Alabama could enact a ban on abortion except in instances of rape, incest or to save the life of the mother. On the other hand, California could permit abortion in all instances and provide unfettered access on demand.
Many states have already passed laws in anticipation of Roe v. Wade being overturned.
Thirteen states, such as South Dakota and Wyoming, have passed so-called “trigger laws,” written to restrict or ban abortions if and when Roe v. Wade is overturned. (This type of law avoids immediate court challenges.)
Seven states, such as Wisconsin, still have abortion laws from before 1973 that could again be enforced. Other states, like Mississippi, have passed laws directly intended to mount a court challenge to Roe.
On the other hand, sixteen states have acted to codify a “right” to abortion in state law, regardless of what federal courts say. Four of those states (Colorado, New Jersey, Oregon, Vermont) and the District of Columbia go even beyond Roe, expressly permitting abortion for any reason through all nine months of pregnancy. Overturning Roe would have no effect on these laws.
How Did We Get Here?
The Roe decision said that states could not prohibit abortions before an unborn child becomes “viable” (that is, able to live outside the womb), a point the Court at the time defined as 24 to 28 weeks of pregnancy.
The case currently before the Court that has prompted the possible overturning of Roe v. Wade is Dobbs v. Jackson Women’s Health Organization. In this case, Jackson Women’s Health Organization, an abortion provider in Mississippi, challenged the 2018 Mississippi law that prohibits abortions after 15 weeks of pregnancy.
Jackson Women’s Health Organization argued that the law is inconsistent with the rule in Roe that abortions could not be prohibited before viability. Lower courts agreed and ruled the new law should be struck down as violating Roe.
In its appeal to the Supreme Court, the state of Mississippi agreed that its 15-week abortion ban is inconsistent with Roe and asked the Supreme Court to overturn Roe v. Wade altogether.
Although the briefs, oral arguments and final decisions of the Supreme Court are all matters of public record, this process of internal deliberation is usually shrouded in secrecy. It is extraordinarily unusual for a preliminary draft of a SCOTUS opinion to be leaked to the media.
The Supreme Court has publicly verified that the draft decision posted by Politico is authentic, but it is identified as a “1st Draft” and dated February 10—nearly three months before it was made public.
Politico acknowledged, “It’s unclear if there have been subsequent changes to the draft.” However, the article cited a “person familiar with the court’s deliberations” in asserting that five Justices—Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, along with the draft opinion’s author, Samuel Alito, had voted in conference to overturn Roe.
The source also claimed “that line-up remains unchanged as of this week.” Three liberal Justices—Stephen Breyer, Sonia Sotomayor and Elena Kagan—reportedly plan to dissent.
Even with three Justices dissenting, and one unconfirmed, the five Justices voting to overturn Roe would be enough to overturn Roe v. Wade.
Who Leaked the Opinion and Why?
It is not known who leaked Justice Alito’s draft opinion to Politico. Many people suspect that it might have been a clerk to one of the Justices. Each Justice hires a handful of temporary clerks for each one-year term.
It is also not known whether conservative or liberal ideology motivated the leak.
Some people have speculated that if the opinion has been watered down during internal deliberations, a conservative might have wanted the public to see Justice Alito’s original, powerful condemnation of Roe v. Wade.
It seems more likely, however, that the leak came from a pro-abortion advocate in a desperate hope that a final outpouring of outrage from the public might push the Court back from the brink of overturning Roe.
Support for this theory comes from the fact that liberal criticism has focused primarily on the content of the draft opinion and its implications for society. Conservatives have expressed more concern about the leak itself—and the almost hysterical response it has triggered from activists on the left, who have demonstrated at the Supreme Court Justices’ homes and vandalized the offices of pro-life organizations.
What Happens Next?
In a statement after the leak to the media, Chief Justice John Roberts insisted, “The work of the Court will not be affected in any way.” He also said an investigation would take place into this “betrayal” and “egregious breach of … trust.”
A final decision is expected to be handed down at any time between now and the end of the Court’s term, which concludes in late June or early July.
Family Watch will continue to keep you apprised of any information we receive along the way, and we remain ready to support women, men and their families during this truly historic time.