In an unprecedented move, a draft US Supreme Court opinion by Justice Samuel Alito was leaked to POLITICO on Monday 2 May.
Sending shockwaves through the United States and beyond, the statement read: “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision…”.
This document spells what could well be the end of federal abortion rights in the United States
Overturning Roe and Casey
Together Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) state that US states cannot introduce legislation that creates an undue burden for a woman seeking an abortion before the stage of ‘foetal viability’ (normally around 24 weeks). Several challenges to Roe v. Wade have gone to the Supreme Court since Roe first passed in 1973, including Casey. And while some of these cases narrowed the scope of Roe none have come so close to overturning the ruling completely.
On a state level, Republican state-led legislatures have enacted various forms of abortion-restricting legislation at an increasing rate since 2019. Most of these were dismissed by federal courts as being in violation of the US Constitution, until the Texas Heartbeat Act introduced in Texas in May 2021 which was upheld by the US Supreme Court (due to a legal loophole) and set off a cascade of new questions about the state enforcement of pre-viability abortions in the United States. Read USSC’s earlier write-up here.
Among other state-level challenges to constitutional abortion rights was Mississippi’s Gestational Age Act (2018) banning abortions after 15 weeks of pregnancy arguing that foetal viability was possible at 15 weeks. The Act was struck down as unconstitutional shortly after it passed the Mississippi state legislature in March 2018 and then went through a series of appeals and injunctions between 2018 and 2019 that prevented the bill from being lawfully enacted.
Eventually, the US Supreme Court agreed to hear the state’s appeal in June 2020, and in May 2021 following the passing of the Texas Heartbeat Act in May 2021, the Supreme Court granted in a majority vote of 6-3 that it would review the appeal (known as, Dobbs v. Jackson’s Whole Women’s Health) on the question of “whether all pre-viability prohibitions on elective abortions are unconstitutional”.
This leaked drafted opinion by Justice Alito was in response to this case: Dobbs v. Jackson’s Whole Women’s Health Organisation. According to this first draft majority opinion, the answer to whether pre-viability abortion bans were unconstitutional is a resounding “no”.
If this becomes official, Mississippi will be able to enforce its ban on abortions after 15 weeks, but that is just the beginning. Florida, Kentucky, Oklahoma, Arizona, Idaho and Wyoming have all enacted bans on abortions before the time of viability. These bans are currently blocked and unlawful because of their unconstitutionality, but if Roe and/or Casey is overturned, these laws could become constitutional and immediately enforceable.
Some of these laws, like the six-week ban in Texas, are considered a ‘near-total ban’ because they restrict abortions to a time before many women know they are pregnant. Some offer punitive punishments for violations. In Texas, anyone seen to ‘aid or abet’ the provision of an abortion is liable for a US$10,000 civil suit. Most recently, Oklahoma’s law which passed on 5 April 2022 makes abortion procedures, except to save the life of the pregnant woman, punishable by 10 years imprisonment. Another Texas law in June 2021, made the offence a life sentence for doctors.
American women have had the constitutional right to seek an abortion for the past half-century. Now, the future of abortion access in the United States is entirely uncertain. While the other four judges making the majority have voted in favour with Justice Alito, the draft still only reflects his opinion and may still change. More still, as many states have rushed to introduce bans, several others have implemented measures to further protect, and even guarantee, the right to access abortions no matter what the US Supreme Court decides. There is also scope to protect abortion rights through the US Congress, with the Democrat-controlled House approving such a bill in September 2021.
In the draft, Alito wrote, “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.”
Contrary to Justice Alito’s words, if the reaction to this leaked draft is any indication, the debate and division has only just begun.