Roe v. Wade: What Is It and What Could the Supreme Court’s Leaked Draft Opinion Signal?

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A landmark 1973 Supreme Court ruling that granted federal abortion protections could soon be overturned amid the revelation of a draft opinion from one of the court’s conservative justices, potentially leaving states to determine how to manage the procedure within their borders.

The 7-2 decision in Roe v. Wade, who outlawed the regulation of abortions for women in their first trimester of pregnancy, stepped in on Jan. 22, 1973, after months of deliberation and two rounds of court pleadings.

SUPREME COURT LEAKS ARE RARE BUT NOT UNPRECEDENTED

A Center for Popular Democracy Action activist holds a photo of U.S. Supreme Court Justice Samuel Alito as they block an intersection during a protest outside the U.S. Supreme Court on December 1, 2021 in Washington, D.C. DC.
(Chip Somodevilla/Getty Images)

Norma McCorvey, identified as Jane Roe in the case, became pregnant in 1969 and wanted an abortion. At the time, abortions were prohibited in Texas except in cases of rape, incest or to save the life of the mother. With the help of two recent University of Texas law students, a lawsuit was filed on McCorvey’s behalf. This lawsuit asserted that McCorvey’s constitutional rights had been violated and that she had the right to an abortion in her home state of Texas.

The U.S. District Court for the Northern District of Texas agreed that the state’s denial of McCorvey to have an abortion in the state was unconstitutional, underscoring his Ninth Amendment right to privacy. Eventually, after a state appeal, the case went to the Supreme Court in 1970.

Portrait of Norma McCorvey (Jane Roe in Roe v. Wade) after admitting she was not gang raped when she requested an abortion in 1970.
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Portrait of Norma McCorvey (Jane Roe in Roe v. Wade) after admitting she was not gang raped when she requested an abortion in 1970.
(Cynthia Johnson/Getty Images)

The Supreme Court has ruled that state laws prohibiting abortions — except to save the life of the mother — are unconstitutional under the 14th Amendment, which states that no state “shall make or enforce any law which restricts the privileges or Immunities of Citizens” of the United States. States.

The Supreme Court could make a sweeping change to abortion case law in Dobbs v. Jackson Women’s Health Organization, an abortion case in Mississippi. This could potentially allow states to radically alter access to the procedure.

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A leaked draft opinion from February and published by Politico on Monday said the court could go in that direction, although the decision is not final.

Pro-life protesters stand outside the United States Supreme Court building during the annual Right to Life March, Washington DC, January 22, 1988.

Pro-life protesters stand outside the United States Supreme Court building during the annual Right to Life March, Washington DC, January 22, 1988.
(Mark Reinstein/Corbis via Getty Images)

“We believe that Roe and Casey should be quashed,” Judge Samuel Alito wrote in the document, titled “the opinion of the Court” for Dobbs v. Jackson Women’s Health Organization. “It is time to respect the Constitution and return the question of abortion to the elected representatives of the people.”

Alito also noted the “strongly contradictory views” Americans have on the subject.

“Some fervently believe that a human person is born at conception and that abortion ends an innocent life,” he writes. “Others believe just as strongly that any regulation of abortion undermines a woman’s right to control her own body and prevents women from achieving full equality. Still others, in a third group, believe that abortion should be permitted in some, but not all, circumstances, and those this group has varied views on the particular restrictions that should be imposed.”

Supreme Court Justice Samuel Alito speaks at the Federalist Society National Lawyers Convention in Washington, Thursday, Nov. 17, 2016.

Supreme Court Justice Samuel Alito speaks at the Federalist Society National Lawyers Convention in Washington, Thursday, Nov. 17, 2016.
(AP Photo/Cliff Owen)

Observers have previously suggested the court’s conservative majority would overturn decades of precedent after Roe v. Wade. Doing so could allow state legislatures to pass laws banning abortions prior to fetal viability.

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It’s also possible the court will set a vague new standard for abortion restrictions — opening the floodgates for further litigation and slowing Republican efforts to ban the procedure.

Twenty-six states are certain or likely to ban abortion if Roe v. Wade is canceled, according to abortion rights think tank, the Guttmacher Institute. Of these, 22 states already have total or near-total bans on books currently blocked by Roe, with the exception of Texas. The state law banning it after six weeks has already been allowed to go into effect by the Supreme Court because of its unusual civil enforcement structure. Four other states are considered likely to quickly enact bans if Roe is overturned.

Participants in the anti-abortion rally "march for life" make their point of view known by going to the Supreme Court.

Participants in the anti-abortion rally “March for Life” made their views known by going to the Supreme Court.
(Bettmann Archive/Getty Images)

Meanwhile, sixteen states and the District of Columbia have protected access to abortion in state law.

This year, anticipating a ruling overturning or eviscerating Roe, eight conservative states have already taken steps to restrict abortion rights. Oklahoma, for example, has passed several bills in recent weeks, including one that will take effect this summer, making performing an abortion a crime. Like many anti-abortion bills passed this year in GOP-led states, it makes no exceptions for rape or incest, only to save the life of the mother.

The Supreme Court on Tuesday responded to the leaked draft notice that was published by Politico and upheld its authenticity, with Chief Justice John Roberts condemning the leak and calling for an investigation into the source.

A crowd of people gather outside the Supreme Court, Monday evening, May 2, 2022, in Washington following reports of a leaked draft opinion by the court quashing Roe v.  Wade.

A crowd of people gather outside the Supreme Court, Monday evening, May 2, 2022, in Washington following reports of a leaked draft opinion by the court quashing Roe v. Wade.
(AP Photo/Anna Johnson)

“Judges circulate draft opinions internally as a routine and essential part of the Court’s confidential deliberative work. Although the document described in yesterday’s reports is authentic, it does not represent a decision of the Court or the final position of a member on the issues in dispute,” the court said.

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“To the extent that this betrayal of the Court’s confidences was intended to undermine the integrity of our operations, it will not succeed. The work of the Court will not be affected in any way,” Roberts said. “At the Court, we are fortunate to have a workforce – permanent staff and paralegals – intensely loyal to the institution and dedicated to the rule of law. Court employees have an exemplary and important tradition of respecting the confidentiality of the judicial process and maintaining the confidence of the Court.”

Chief Justice John Roberts October 08, 2010 in Washington, DC.

Chief Justice John Roberts October 08, 2010 in Washington, DC.
(Bill O’Leary/The Washington Post via Getty Images)

“This was a singular and egregious breach of that trust which is an affront to the Court and to the community of public servants who work here,” Roberts added.

The Chief Justice said he had asked the Marshal of the Court to open an investigation “into the source of the leak”.

Sam Dorman and the Associated Press contributed to this article.

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