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The news of a leaked copy of the U.S. Supreme Court’s draft decision to overturn Roe v. Wade feels both shocking and predictable.
The court, with the appointment of three conservative justices by former President Donald Trump, has turned solidly to the right. In its December oral arguments in the case of Mississippi abortion restrictions, these conservative justices made it clear they had few qualms about overturning the 50-year-old ruling that concluded American women had a constitutionally protected right to abortion services.
So, many court observers said, it was simply a matter of time before Roe was overturned.
Yet, the sting of the draft decision, which was leaked to Politico, is still harsh. There in clear language is a decision, not yet final, that says Roe was “egregiously wrong.” A woman’s right to bodily autonomy is nowhere in the Constitution, the opinion essentially says.
“The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions,” in the draft opinion, which Politico said was written by conservative Justice Samuel Alito.
Alito, it seems, is suggesting that, because the men who have long ruled our nation and its many institutions didn’t value or recognize a right to abortion, that right doesn’t – or shouldn’t – exist.
This defies logic. Abortions have been performed in the United States for centuries, whether the procedure was legal or not. In other words, women have long sought autonomy of their bodies. The 1973 Roe decision made it easier and safer for women to exercise this autonomy. This new decision, if it is finalized as it is currently written, will make it harder again.
It will be especially damaging for poor women and women of color. Restricting access to abortion clearly hurts women. Women who are denied abortion are more likely to remain with abusive partners and to remain poor. They are more likely to be evicted from their homes and more likely to become unemployed. This is bad for the women and their children.
Further, overturning Roe’s protections, won’t necessarily reduce the number of abortions in America. Restricting access to abortion doesn’t reduce abortions, it makes them less safe, research has found.
To be clear, what has been released is a February draft of the majority opinion that was leaked to Politico. According to Politico, the opinion was authored by Alito and supported by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – the latter three at Trump appointees. Although not in the document, dissents to the opinion would come from liberal Justices Elena Kagan, Sonia Sotomayor and Stephen Breyer (although he is set to retire and Ketanji Brown Jackson has been confirmed to replace him, he remains on the court). It is unknown how Chief Justice John Roberts initially voted, but he alone can’t swing the decision away from overturning Roe. It is possible that the language of the final opinion will be changed, but its impact likely will not be.
Roberts said on Tuesday that the leaked opinion was authentic, but that it does not represent a final decision of the court or any of its members. He also said he would launch an investigation into the leak.
The stakes in the case are high, with strong opinions around the country both for and against abortion. However, it is unfortunate that someone felt compelled to leak this. It serves no purpose other than to further inflame those emotions and to further erode the public’s trust of the U.S. Supreme Court, which despite its politicization, remains a vital institution with decisions that impact our daily lives.
We don’t want to look too far down the road based on a leaked document, but it is worth noting that if adopted by the court, this decision could have far-reaching – and we believe, dangerous – impacts.
Many other rights that the court has so far upheld are not explicitly enumerated in the Constitution. These include the right to contraception, the right to marry people of other races or people of the same sex. If this solidly conservative court follows the path set in this opinion, it clearly has no qualms about overturning precedent and these rights are also in jeopardy.
So, although this is a draft decision, it is not too soon to worry about this alarming prospect.