A majority opinion draft from the US Supreme Court has been leaked to Politico, containing plans to overturn the landmark decision which guaranteed US citizens’ right to an abortion.
The US Supreme Court, which exists to ensure passed legislation is concordant with the constitution, has drafted a majority opinion that seeks to overturn Roe V Wade; the court decision that has guaranteed US citizens the legal right to an abortion for almost half a century.
The document, drafted by conservative Supreme Court Justice Samuel Alito, which was leaked to Politico, is the first of its kind to be leaked to the public while the case is still pending.
The document received the support of the four other conservative judges on the court while being opposed by the three liberal judges (there are 9 judges on the US Supreme Court). Whether the opinion will be supported or opposed by Chief Justice John Roberts is currently unclear.
Roe V Wade, which was later reinforced by Planned Parenthood V Casey (which would also be overturned by the decision), established the right to an abortion for US citizens dependent upon the so-called “viability” of a foetus; it is legal to abort a foetus up until it would be able to survive outside of the womb. The overturning of Roe V Wade would mean that banning or permitting abortion would be delegated to state governments.
This would mean that many “red states”, no longer required to provide even a minuscule window in which an abortion is legal, would likely ban abortions altogether; a disastrous step backwards for women’s rights. Several red states already have laws and regulations designed to limit abortions with so-called TRAP (Targeted Regulation of Abortion Providers) laws designed to regulate and heap expenses upon abortion providers until they can no longer function effectively. Other Republican-run states have determined the “viability threshold” to be incredibly early in order to limit abortion access. In Texas, a notorious law was introduced in 2021 limiting the legal abortion period to just 6-weeks, while another currently in the works in Mississippi seeks to ban abortions after 15-weeks. The above Texas and Mississippi laws are currently being opposed on the precedent set by Roe V Wade.
The official publication of the document is expected in two months, which would mark its adoption as an official position of the Supreme Court.
The Supreme Court gained a conservative majority towards the end of Donald Trump’s presidency when liberal Justice Ruth Bader Ginsburg died and was replaced by conservative Justice Amy Coney Barret. Political commentators had expected the Supreme Court to make some inroads against abortion rights but did not expect Roe V Wade to be rejected in its entirety.
Justice Alito’s criticism of Roe V Wade in the document states:
“Roe was egregiously wrong from the start. 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 inflamed debate and deepened division.”
“Roe’s survey of history ranged from the constitutionally irrelevant to the plainly incorrect.”
“Roe expressed the ‘feel[ing]’ that the Fourteenth Amendment was the provision that did the work, but its message seemed to be that the abortion right could be found somewhere in the Constitution and that specifying its exact location was not of paramount importance.”a
“The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions.”
Alito also dismissed the idea of “viability” as a distinguishing characteristic of a foetus as “making no sense”.
Alito also claimed that:
“Some such supporters [of Roe v Wade] have been motivated by a desire to suppress the size of the African American population. It is beyond dispute that Roe has had that demographic effect. A highly disproportionate percentage of aborted fetuses are black.”
This claim has been ridiculed by some as either bad-faith or obscenely surface-level in its analysis. Alito appears to have ignored the effects of socio-economic issues, such as the affordability and accessibility of contraceptives, on abortion rate. It also ignores evidence that abortion bans do little to reduce the total number of abortions, but rather decrease the number of safe abortions, while many people are forced to instead risk dangerous “DIY” methods.
Since the 2016 presidential election a “culture-war” has dominated much of US politics, with certain conservative elements continuously fear-mongering about supposed encroachments on liberty and truth. From “critical race theory” and “cultural marxism” supposedly being used to indoctrinate children, to “gender-neutral potato head toys” and “the green M&M not being sexy enough” being supposed attacks on traditional gender norms, the “culture-war” has certainly seemed deranged from a non-US perspective, yet some have suggested that, as “culture-war” rhetoric has been increasingly adopted by US conservative politicians, Roe v Wade may simply be another casualty in history’s most inane conflict.