Explained: the anti-abortion challenge to Roe v Wade

Supreme Court may overturn landmark reproductive rights ruling, leak suggests

Abortion activists demonstrating outside the Supreme Court in 2018
Abortion activists demonstrating outside the Supreme Court in 2018
(Image credit: Alex Wong/Getty Images)

The Supreme Court is preparing to overturn its landmark Roe v Wade ruling, which guaranteed access to abortion in every state, according to an unprecedented leak.

In a 98-page draft opinion, Justice Samuel Alito wrote that the 1973 Roe v Wade decision legalising abortion across the US is “egregiously wrong”. The issue of abortion should be returned “to the people’s elected representatives”, he said.

This would pave the way for individual states to decide whether to ban abortion and how to regulate it”, The Times said, “a return to the position before the 1973 ruling”.

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Abortion challenge

Alito’s draft opinion, labelled as the “Opinion of the Court” and published in full by Politico, said: “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.

“We hold that Roe and Casey must be overruled. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

Overturning the decision would “send an electric shock through American politics”, The Times said. Joe Biden has pledged to push legislation through Congress to protect abortion rights in the event that the Supreme Court overturns the decision, but this is an “impossible task at present given his party’s wafer-thin majorities in both chambers”.

If “the top US court strikes down” the protection of reproductive rights, the BBC said that “trigger laws” could potentially make abortion illegal in 22 US states “instantly”.

The justices are not expected to issue a ruling until early July. But the leaked draft “will cause despair among pro-choice campaigners”, said The Times. It “sparked immediate outcry from Democrats, and protests – by both pro and anti-abortion supporters – outside the Supreme Court” last night, the BBC reported.

Roe v. Wade

Passed during Richard Nixon’s term in the White House, the original Supreme Court judgment swept away a series of federal and state anti-abortion laws by establishing a woman's constitutional right to choose to have an abortion in the first three months of pregnancy.

The ruling was the result of a case revolving around Norma McCorvey – known in her lawsuit under the pseudonym “Jane Roe”. McCorvey was in her mid-20s when she sought a termination after becoming pregnant with her third child in 1969. But she lived in Texas, where abortion was illegal except when necessary to save the mother’s life.

Her case was taken to the Supreme Court, where justices ruled 7-2 that a woman’s right to terminate her pregnancy came under the freedom of personal choice in family matters, as protected by the US Constitution – a ruling that effectively legalised the procedure across the nation.

However, the “contentious” debate about the political, religious and moral issues surrounding abortion continued to rage in the ensuing decades, said The New York Times.

The review of Roe v Wade was triggered by a case brought in the name of Thomas Dobbs, the state health officer for Mississippi, where state law bans abortions after 15 weeks except in in cases of medical emergency or severe foetal abnormality.

Anti-abortion activists had arged that the more restrictive legislation is “necessary to protect foetal life” and have “expressed confidence that it would be judged constitutional by the Supreme Court”, The New York Times reported.

But pro-choice activists had said that if the Supreme Court upholds that proclaimed right, dozens of states would rush to enact similar measures.

Supreme leak

While the contents of the opinion have proved explosive, the very fact that a document from the US’s highest court has become public is also completely “unprecedented”, said BBC North America reporter Anthony Zurcher.

“For most of US history, the Supreme Court has operated like Mount Olympus, handing down opinions from on high,” he said. But the leak of a half-formed legal ruling means “that opacity has been shattered perhaps for good”.

Politico described the source as “a person familiar with the court’s proceedings in the Mississippi case along with other details supporting the authenticity of the document”.

“A full-scale investigation involving the FBI” will attempt to find the source of the information, according to CBS News.

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