The Supreme Court will vote to strike down Roe v. Wade, the landmark 1973 Supreme Court case that protects a person’s right to an abortion, according to a leaked draft majority decision published by Politico on Monday.
The draft, written by Justice Samuel Alito, disavows Roe v. Wade as well as the 1992 decision Planned Parenthood v. Casey, which upheld the constitutional right to abortion as well as established an “undue burden” standard for laws that seek to undermine a woman’s ability to seek an abortion.
“Roe was egregiously wrong from the start,” Alito writes in the draft decision for Dobbs v. Jackson Women’s Health Organization. “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.”
Alito continues to say that the Constitution does not support the legal right to an abortion. “We hold that Roe and Casey must be overruled,” he adds. “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision. … It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
Politico notes that justices have in the past changed their votes on major decisions following the circulation of a draft opinion, and that decisions can be “subject to multiple drafts and vote-trading.” Ultimately, the court’s decision will not be finalized until it is published.
Should Roe be overturned, states will have the authority to enact protections for or repeal abortion rights. Some states have already passed “trigger laws,” which would move to automatically instate an abortion ban if the court overturned Roe’s decision. Meanwhile, other states have codified the right to abortion or are looking for ways to legally ensure abortion access under their state constitutions.
SCOTUS first heard arguments for Dobbs v. Jackson Women’s Health Organization in December 2021. The case, which will determine the constitutionality of a pre-viability abortion ban, centers on Mississippi’s 15-week abortion ban, which state legislators passed in 2018. Mississippi lawmakers had banned any abortion operation after the first 15 weeks of pregnancy without exceptions for cases of rape or incest. State lawmakers are now asking the high court to overturn the long-established legal precedent involving fetal viability.
American Civil Liberties Union executive director Anthony Romero condemned the leaked draft in a press release statement. “It would deprive half the nation of a fundamental, constitutional right that has been enjoyed by millions of women for over 50 years” Romero said. “The breach in protocol at the Court pales in comparison to the breach in constitutional freedoms that the Court is charged with upholding.”
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