On December 1st, 2021, the American Supreme Court began hearing arguments regarding Mississippi’s Gestational Age Act, a law that would ban the majority of abortions in the state, beyond the first 15 weeks of pregnancy, with limited exceptions in the case of “severe fetal abnormality” or medical emergency. This year, as the Court prepares to decide on this law, the discourse surrounding the outcome and the implications on the precedents set by Roe vs. Wade has been a focal point of American politics.
Late on Monday, May 2nd, these issues were publicly reignited when a Supreme Court draft opinion concerning the future of Roe vs. Wade was leaked and published online by Politico. The leak strongly indicates that the American justice system is poised to overturn the landmark 1973 case which set the precedent for decriminalizing and allowing individuals the right to an abortion. Previously, Roe vs. Wade was upheld under the Constitutional clause beneath the 14th Amendment protecting one’s “right to privacy”. The draft was characterized as the opinion of the court, suggesting that the majority of Supreme Court justices had agreed with its contents, and reflecting the dominance of conservative justices on the court who hold a six-three majority. Condemning the breach of trust that had led to the leak, Chief Justice John Roberts confirmed that the leaked draft was authentic and had been circulated within the court but did not necessarily represent a final decision. Currently, the three Democratic justices of the Supreme Court are working toward preparing dissents to the leaked draft.
The draft opinion, written by Justice Samuel Alito, states that the author “holds that Roe and Casey must be overturned”, as the right to an abortion is not “implicitly protected by any Constitutional Provision”. The draft further centres upon the “fundamental differences” between rights concerning abortions and other “protected” aspects of personal life including marriage, contraceptive care, and intimacy, to argue that abortions include the destruction of “fetal life”. Alito described the Roe decision as “egregiously wrong”, indicating his strong stance toward dismantling federal protections for access to abortions. The draft states that other rights, notably the issues of LGBTQ+ marriage and the right to engage in private intimate relations, would not be affected, though critics of the move note that this ruling, if passed, could potentially threaten other rights not explicitly outlined in the constitution but which are also underpinned by the 14th Amendment.
In the absence of Congressional legislation around abortion rights, protections offered by Roe vs. Wade and subsequent court decisions such as that of Planned Parenthood vs. Casey, permit someone the right to have an abortion during the first trimester of pregnancy. If the draft ruling is implemented, and Roe vs. Wade is overturned, the onus of decision-making would fall upon state representatives and governmental bodies to hold the authority to protect, eliminate, or regulate the right to abortion. Legislation regarding access to abortion has remained a contested topic in the United States, and though while the issue of ending abortion is a mobilizing topic for the right of the Republican party, many independent polls indicate a strong majority of Americans support the preserving of protections for abortion.
The draft suggests that, with the overturning of Roe vs. Wade, the onus of decision-making would fall upon state representatives and governmental bodies to hold the authority to protect, eliminate, or regulate the right to abortion as they deemed fit. As abortion has grown more divisive along partisan lines in recent years, individual states are likely to differ significantly in their approaches to regulating access to abortions. Several existing governments including Louisiana and Texas have already revealed that they are planning “trigger” laws that could be legitimized if Roe is overturned.
While right-to-life organizations such as the Susan B. Anthony List have celebrated and rallied around this information, those in favor of abortion rights remain concerned about the effects that this ruling may have on the health and safety of those who can get pregnant as well as on other related rights protected by privacy. Nationwide, protests and lobbying efforts surrounding the protection of abortion rights continue across America and worldwide, including mass rallies and protests outside the Supreme Court and across federal justice buildings across the United States, as women’s rights groups have condemned the draft. Political opposition has come from Democratic leaders who have been outspoken about the issue, with Speaker of the House Nancy Pelosi describing the potential decision as “an abomination” and “one of the worst and most damaging decisions in modern history”. American President Joe Biden described the court’s inclination to overturn the Roe vs. Wade ruling as a “radical decision”, expressing concerns for other rights that may be threatened, and stating that he hoped that there were not enough votes to pass. Congress will vote next week on a bill that, if passed, would legalize abortions in America. However, codifying abortion rights will have setbacks in the form of the filibuster, an obstructive tactic that will delay the decision through prolonged debate. If the filibuster is used, 60/100 votes will be needed to advance this legislation, and the Republican minority could block the abortion bill.
Currently, the courts have finished hearing arguments for issues within this term. Over the course of the next two months, representatives will continue to delegate, and decisions will be pursued on cases that are yet unresolved, including Mississippi’s Gestational Age Act. A decision is expected to be reached before the court’s term completes in late June.