Last night, Politico reported that they obtained a draft majority opinion written by Justice Samuel Alito that indicates that the Supreme Court will reverse Roe v. Wade, eradicating federal constitutional protections of abortion rights.
The 98-page document clearly decries both Roe v. Wade and Planned Parenthood v. Casey, a Supreme Court decision from 1992 that largely upheld the 1973 ruling. The source indicates that four of the other Republican-appointed justices – Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – had voted with Alito to create the majority. Read the document in full here.[Editor’s note: Since the publishing of this piece, Chief Justice Roberts has confirmed the legitimacy of the leaked document, saying it was an “egregious breach of trust”.]
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 enflamed debate and deepened division.”
Justice Samuel Alito, in an initial draft majority opinion, via Politico.
There’s also some troubling language within this draft that sets a dangerous precedent for other liberties. In the draft, Justice Alito argues that the rights protected by the Constitution that aren’t explicitly mentioned must be “strongly rooted” in U.S. history and tradition. So, where is that line drawn? And who decides which liberties are strongly rooted?
• Read below for other ways you can fight for reproductive justice.
The document also argues that Casey v. Planned Parenthood, which re-affirmed a person’s liberty to get an abortion, did not have “a sound basis in precedent.” When passed, the case effectively argued that the Supreme Court had made many decisions that afforded constitutional protection to personal decisions. The draft listed examples, including Loving v. Virginia, which made interracial marriage legal; Griswold v. Connecticut, which grants the right to obtain contraceptives; Lawrence v. Texas, the right to engage in private, consensual sexual acts; and Obergefell v. Hodges, the right to marry a person of the same sex. If, as the draft states, “these attempts to justify abortion through appeals of a broader right to autonomy” are “too much,” what does it say about these laws?
Lastly, the document makes some chilling comparisons to racial segregation. Justice Alito compares Roe v. Wade to Plessy v. Ferguson, a Supreme Court ruling from 1896 that upheld “separate but equal” state-mandated segregation laws. Plessy wasn’t overturned until the Brown v. Board of Education ruling in 1954, allowing segregation to persist for nearly 60 years. This comparison implies that abortion access is akin to encouraging racial segregation. Justice Alito goes further to compare high abortion rates in the Black community to eugenicist beliefs, implying that “supporters [of abortion] have been motivated by a desire to suppress the size of the African American population” (Politico).
Drafts of opinions often change by the time the decision is announced, so this is not a final nor formal decision (the Court is expected to make a decision in June). But considering how adamant the conservative Supreme Court justices have been to reverse Roe and Casey historically, it’s not surprising to see this news. And this has never happened before; there’s never been a draft decision from the Supreme Court leaked and disclosed publicly while the case was still pending (Politico).
Regardless, the weight of this leaked draft will have immediate consequences. It’s likely to dissuade people from seeking abortion care and place abortion facilities at risk of more torment from conservatives. Moreover, it’ll bolster state decisions to restrict abortion access. Several Republican-led states, including Florida, Texas, Oklahoma, Idaho, and Kentucky, have already implemented restrictions on abortions. State or federal judges have challenged some because they conflict with Roe and Casey but are likely to be upheld if overturned by the Supreme Court. By the end of the summer, it’s expected that 26 states will introduce legislation to ban abortions (Planned Parenthood).
Our take action items above are pretty straightforward, but here are other ways you should prepare to address the potential news and protect abortion rights:
Get ready to VOTE. If Roe v. Wade is overturned, states will be able to decide on whether to provide abortion access (and other forms of reproductive care, most likely) on their own. This brings a powerful political advantage to conservative candidates that want to leverage this for their campaigns.
Make an abortion safety plan with your community. This can be with your friends, colleagues, family members, or neighbors. Note the closest abortion providers near you. Volunteer to protect their front doors. Offer to provide transportation to their patients.
• A leaked draft from the Supreme Court alleges the reversal of Roe v. Wade, eradicating federal constitutional protections of abortion rights.
• The details in the document call into question the protection of other civil rights and liberties.
• The draft isn’t law yet but will have immediate consequences for abortion facilities and state decisions to implement restrictions.