As reported by Politico on Monday, Justice Samuel Alito wrote in a draft decision that the 1973 landmark abortion ruling “was egregiously wrong from the start.”
“We hold that Roe and Casey must be overruled,” he wrote. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
Reproductive rights advocates have for years now warned that the build-up of conservative justices on the U.S. top court posed a direct threat to the future of abortion rights in the country.
Still, news of the draft ruling landed like a bomb in a country writhing with partisan tensions seven months before mid-term elections that could see Democrats lose control of Congress and block any future moves to enshrine federal protections for abortion.
But what does the draft decision overturning Roe v. Wade actually say? And what happens next?
Why Alito's draft ruling wants to overturn Roe v. Wade
Alito’s argument centered around whether the original drafters of the U.S. Constitution explicitly included abortion in the rights enshrined for the American people.
“The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision,” Alito wrote in the 98-page draft ruling.
Yet there are numerous rights conferred on people in the U.S. that were not explicitly mentioned by the writers of the Constitution.
Civil liberties are one such example, along with voting rights for women, same-sex marriage, and the right to abortion. That’s due in large part to the Fourteenth Amendment which prohibits any state from having any laws “which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
That amendment has formed part of some of the most significant equality rights decisions of the modern era, including Roe v. Wade as well as Brown v. Board of Education, which determined racial segregation in American schools was unconstitutional.
Reed v. Reed is the case that put the late Ruth Bader Ginsberg in the spotlight when the Supreme Court ruled in favour of her argument that discrimination on the basis of sex was unconstitutional.
Alito, however, argued in the draft ruling that the constitutionality of abortion is “fundamentally different” than the other matters weighed under the Fourteenth Amendment.
He argued that none of those matters “involved the critical moral question posed by abortion.”
Alito went on to assert that abortion is also not covered by the Fourteenth Amendment because that amendment only applies, in his interpretation, to rights not mentioned in the Constitution but that must be “deeply rooted in this Nation’s history and tradition.”
“The right to abortion does not fall within this category,” Alito wrote.
He argued that abortion access should be left up to states to decide.
What does the draft mean for abortion rights?
Until any ruling is published by the court, the status quo remains.
Robin Marty, operations director at the West Alabama Women’s Center, is the author of a book called The New Handbook for a Post-Roe America which explores abortion access and legality in the event Roe is overturned.
She took to Twitter to emphasize that the draft ruling does not change any laws on access to abortion at the current time, and that anyone planning to get an abortion can still do so — for now.
“Yes it looks like Roe is about to be overturned,” she wrote on Twitter. “But right now abortion is still legal. If you have an appointment tomorrow, next week, soon, you are still fine. Don’t let people scare you out of getting care. Nothing is in effect until the decision actually comes.”
Planned Parenthood called the draft decision “outrageous” but “not final.”
“Abortion is your right — and it is still legal,” the sexual health advocacy group said.
Democratic Congresswoman Alexandria Ocasio-Cortez also stressed the need to be clear that abortion is still legal, while also urging the Biden administration to act now.
Her tweets on Tuesday called on the administration to use their control in the House of Representatives and the Senate as well as the White House to codify federal protections for abortion access.
It’s a growing point of pressure for the Biden administration, which acknowledged on Tuesday that if the U.S. Supreme Court published its decision, the ripple effects would likely extend to other rights.
“If it becomes a law and if what is written is what remains, it goes far beyond the concern of whether or not there’s a right to choose,” Biden told reporters.
“It goes to other basic rights – the right to marriage, the right to determine a whole range of things because one of the issues this court, many members of the court or a number of the members of the court, have not acknowledged is that there is a right to privacy in our Constitution.”
At stake is the future of abortion as a constitutional right.
Roe v. Wade was the name of the U.S. Supreme Court case in 1973 that established a constitutional right to abortion throughout the first trimester of pregnancy.
However, the court added, “that this right is not unqualified.”
That qualification has formed the basis for many restrictions put in place by state governments opposed to abortion. Those range from time frames so short that a person may not even know they are pregnant before their window to seek an abortion has ended, to forcing people to listen to ultrasounds.
The ruling deemed the interests of state governments in both the life of the mother and the potential life of the fetus to be “separate and distinct” from one another.
What happens next?
If Alito’s draft ruling is published in the coming two months as an official decision from the U.S. Supreme Court on Roe v. Wade, the impact would be both immediate and longer-term.
Immediate, because 13 states have legislation banning almost all abortions that are set to kick in almost automatically if Roe gets overturned by the country’s top court. More than a dozen other states have varying degrees of restrictions on the books or in the works.
Known as “trigger laws,” those 13 laws may require a state official to certify that Roe has been overturned, but can come into being with almost no delay once any Supreme Court decision is issued.
They apply in Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah and Wyoming.
Only 16 states have laws that protect abortion.
Of those, just four allow abortion throughout a pregnancy while 12 “explicitly permit abortion prior to viability or when necessary to protect the life or health of the pregnant person,” according to data compiled by the Guttmacher Institute, a U.S. sexual health research institute.
In the longer term, the concern from sexual health and rights groups is that the wording included in the draft ruling could lay the groundwork for the U.S. Supreme Court to overturn other rights — including the right to same-sex marriage established by the court in 2015.
“I think it’s really important that we’re aware of what type of precedent a ruling like this can set and what that means for other protections, for re-igniting this conversation in the U.S., for reigniting it in Canada,” said T.K. Pritchard, executive director of The SHORE Centre in Kitchener, Ont.
Pritchard said they are already hearing concerns from partners in the sexual health and reproductive field about the impact the ruling could have. They added that even if those rights are safe right now in Canada, restrictions in the U.S. embolden people here who want to strip or restrict equality rights.
“We absolutely have politicians that would love to see this conversation happen again,” Pritchard said.
“Whether or not it would ever move forward in law or to vote or anything like that, it still has an impact on the people who live here and the stigma, and again giving validation to people who want to oppose things like abortion and same-sex marriage.”