Supreme Court and Abortion Access: Leaked Decision Shows Roe v. Wade in Jeopardy

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Demonstrators outside the U.S. Supreme Court in Washington, D.C., early on Tuesday, May 3, 2022. Ting Shen/Bloomberg/Getty Images
  • A newly leaked document shows that the U.S. Supreme Court will likely overturn Roe v. Wade in an upcoming decision.
  • Chief Justice John Roberts released a statement Tuesday saying that the draft is authentic.
  • But he said it does not reflect the final decision by the U.S. Supreme Court.

A leaked document published on Politico Monday shows that the U.S. Supreme Court may be set to overturn Roe v. Wade in their landmark ruling on Dobbs v. Jackson Women’s Health Organization this summer.

The document, a draft created in February, essentially claims there is no constitutional right to an abortion.

If this draft reflects the court’s final decision, the federal right to a safe, legal abortion will end, and each state will decide on the legality of abortion.

The final decision is expected in June.

Chief Justice John Roberts released a statement Tuesday saying that the draft is authentic but that it does not reflect the final decision by the court.

Although the document was an early draft, legal experts believe it shows where the majority stands — and that Roe is likely to fall when the official decision is made.

Roberts called the leak an “egregious breach” of the court’s trust and claimed the court’s final decision would not be influenced by the leak.

“I think he’s right — it is an egregious breach of trust — and it needs to be gotten to the bottom of,” Jared Carter, first amendment expert and professor at Vermont Law School, told Healthline.

An investigation into the leak will launch this week.

Here’s what the draft states 

Justice Samuel Alito, who crafted the draft, wrote that the right to an abortion is not written in the constitution anywhere — which, Carter says, is a problematic form of analysis — and that the right to an abortion is not part of our country’s histories and traditions.

Alito also pointed out that, historically, states have prohibited abortions in the United States and that Roe, at the federal level, is the outlier. “It created something out of whole cloth, according to Justice Alito’s draft,” Carter said.

Per the draft, states should be able to develop their own rules on access to abortion.

Such a ruling would have huge implications for people seeking abortions across the country.

There are 26 states poised to ban or restrict abortion if Roe were to be undone. Thirteen states have laws that would immediately ban abortion, nine states have pre-Roe bans that have remained in place since Roe took effect, and a handful of other states have publicly said they would introduce restrictions if Roe falls.

Carter suspects the leaked draft could make states more emboldened to take action.

“What we are likely to see is what we expect to see, and that is…many states doing away with the right, making it virtually impossible for women in that state to get an abortion,” Carter said.

Progressive states like Vermont and California are passing constitutional amendments enshrining Roe v. Wade in state constitutions.

Will the leak affect the court’s decision?

Carter says there is no question that the leak has an impact, but it is unclear if it could affect the final decision or not.

“The institution of the court itself has been shaken, and there’s no way the court can’t react to that,” Carter said.

The leaked document was an early draft, but it does reflect the majority view of the case — that Roe will, most likely, fall.

As many already expected, it is highly likely we will see a reshaping of the constitutional right to abortion.

“It is likely we may see the right disappear entirely at the federal level,” Carter said.

Roe is likely on the ropes, Carter added.

What are the odds that the court may flip its decision and uphold Roe? “I think pretty low,” Carter said.

The bottom line 

A leaked document published on Politico Monday shows that the U.S. Supreme Court is set to overturn Roe v. Wade in the landmark ruling on Dobbs v. Jackson Women’s Health Organization this summer.

While the document is an early draft that is expected to undergo revisions, legal experts say it likely reflects what the justices will ultimately decide: that Roe will fall.

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