The Supreme Court is poised to strike down the right to abortion in the United States, according to a bombshell leaked draft of a majority opinion that suggests it may be poised to overturn the famous Roe v. Wade ruling.
The 98-page draft revealed by Politico calls the landmark 1973 Roe v. Wade decision – which held that access to abortion in the US is a constitutional right – ‘egregiously wrong from the start’.
Abortion rights have been under threat in recent months as Republican-led states move to tighten rules – with some seeking to ban all abortions after six weeks, before many women even know they are pregnant.
These include Arizona, where the Republican Governor in March signed a bill banning abortions after 15 weeks of pregnancy; and Idaho where the governor signed a six-week abortion ban that allows family members of the foetus to sue providers who perform abortions past that point, similar to a Texas law enacted last year.
The draft was written by Justice Samuel Alito and has been circulating inside the conservative-dominated court since February. The leak of a draft opinion while a case is still pending is an extraordinary breach.
The court is expected to rule on the case before its term is up in late June or early July. Here, DailyMail.com looks at what the latest developments mean – and the history of abortion laws in the US:
WHAT IS ROE V. WADE?
The Roe v. Wade decision nearly 50 years ago recognised that the right to personal privacy under the US Constitution protects a woman’s ability to terminate her pregnancy.
On January 22, 1973, the Supreme Court decided that the constitutional right to privacy applied to abortion.
Roe was ‘Jane Roe,’ a pseudonym for Norma McCorvey, a single mother pregnant for the third time, who wanted an abortion.
She sued the Dallas attorney general Henry Wade over a Texas law that made it a crime to terminate a pregnancy except in cases of rape or incest, or when the mother’s life was in danger.
Roe’s lawyers said she was unable to travel out of the state to obtain an abortion and argued that the law was too vague and infringed on her constitutional rights.
Filing a complaint alongside her was Texas doctor James Hallford, who argued the law’s medical provision was vague, and that he was unable to reliably determine which of his patients fell into the allowed category.
The ‘Does’, another couple who were childless, also filed a companion complaint, saying that medical risks made it unsafe but not life-threatening for the wife to carry a pregnancy to term, and arguing they should be able to obtain a safe, legal abortion should she become pregnant.
The trio of complaints – from a woman who wanted an abortion, a doctor who wanted to perform them and a non-pregnant woman who wanted the right if the need arose – ultimately reached the nation’s top court.
The court heard arguments twice, and then waited until after Republican president Richard Nixon’s re-election, in November 1972.
Only the following January did it offer its historic seven-to-two decision – overturning the Texas laws and setting a legal precedent that has had ramifications in all 50 states.
WHAT HAS THE SUPREME COURT DECIDED NOW?
The Supreme Court has not decided anything yet, but a draft opinion reportedly circulated among court justices suggests that it may be poised to overturn Roe v. Wade.
A document labelled ‘Opinion of the Court’ shows a majority of the court’s justices earlier this year threw support behind overturning the 1973 case that legalised abortion across the country.
According to Politico – who published the ‘leaked document’ – the draft opinion shows the court voted to strike down the landmark case. However, it is unclear if the draft represents the court’s final word on the matter.
The paper was labelled ‘1st Draft’ of the ‘Opinion of the Court’ and was said to be referring to a case challenging Mississippi’s ban on abortion after 15 weeks – a case known as Dobbs v Jackson Women’s Health Organisation.
The Supreme Court has yet to issue a ruling in the case, and opinions – and even justices’ votes – have been known to change during the drafting process.
The court is expected to rule on the case before its term is up in late June or early July.
The draft is signed by Justice Samuel Alito, a member of the court’s 6-3 conservative majority, who was appointed by former President George W Bush.
‘Roe was egregiously wrong from the start,’ the draft opinion states.
It in effect states there is no constitutional right to abortion services and would allow individual states to more heavily regulate or outright ban the procedure.
HAVE THERE BEEN OTHER RULINGS SINCE 1973?
On the same day as the Roe v. Wade decision, the justices also ruled in the separate ‘Doe v. Bolton’ case, which authorised each state to add restrictions to abortion rights for later-term pregnancies.
The constitutional right to abortion was later confirmed in a number of decisions, including ‘Webster v. Reproductive Health Services’ in 1989 and ‘Planned Parenthood v. Casey’ in 1992.
In the latter, the court guaranteed a woman’s right to an abortion until the foetus is viable outside the womb, which is typically around 22 to 24 weeks of gestation.
The Planned Parenthood v Casey ruling also affirmed Roe’s finding of a constitutional right to abortion services, but allowed states to place some constraints on the practice.
WHICH STATES COULD MAKE ABORTION ILLEGAL IF ROE V. WADE IS OVERTURNED?
If Roe is overturned, abortion is likely to remain legal in liberal states. More than a dozen states currently have laws protecting abortion rights.
Numerous Republican-led states have passed various abortion restrictions in defiance of the Roe precedent in recent years.
Republicans could try to enact a nationwide abortion ban, while Democrats could also seek to protect abortion rights at the national level.
Twenty-six states are certain or likely to ban abortion if Roe v. Wade is overturned, according to the pro-abortion rights think tank the Guttmacher Institute.
Of those, 22 states already have total or near-total bans on the books that are currently blocked by Roe, aside from Texas.=
The state’s law banning it after six weeks has already been allowed to go into effect by the Supreme Court due to its unusual civil enforcement structure. Four more states are considered likely to quickly pass bans if Roe is overturned.
Sixteen states and the District of Columbia, meanwhile, have protected access to abortion in state law.
This year, anticipating a decision overturning or gutting Roe, eight conservative states have already moved to restrict abortion rights.
Oklahoma, for example, passed several bills in recent weeks, including one that goes into effect this summer making it a felony to perform an abortion.
CAN WOMEN GET AN ABORTION IN A DIFFERENT STATE?
Yes – the variation in abortion laws around America already means that some women have to travel to a different state to access a procedure.
For example in Texas – which has passed a law banning almost all abortions in the state – an average of 1,400 women from the state travelling each month between September and December 2021 and sought out procedures at 34 facilities in other states such as Louisiana and Kansas.
Research by the University of Texas established that more than a quarter of Texans seeking an abortion (27 per cent) went to obtain the procedure in New Mexico, a state which has seven facilities.
WHAT WOULD ROE V. WADE BEING OVERTURNED MEAN FOR WOMEN?
Abortion would not become illegal everywhere in the US if Roe v. Wade is overturned, with individual states still able to choose whether and when they would be permitted.
As it stands, abortion is legal in every state – but with varying restrictions.
Abortion would likely become illegal in about half of the states in the US if the ruling is overturned – with 24 states expected to ban abortion if they are able to do so.
These are: Alabama, Arizona, Arkansas, Georgia, Idaho, Indiana, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia and Wisconsin.
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