Roe v. Wade: Justice Alito’s Leaked Abortion Ban Draft is Far from Law

For months the United States Supreme Court has been considering whether or not to eliminate the federal constitutional protections for abortion rights.

The focus of the deliberations has been a case out of Mississippi, Dobbs v. Jackson Women’s Health Organization. The case is one of the court’s most widely anticipated cases in decades.

The leaked draft opinion on the case would leave the legality of abortion to the states.

The draft, published by Politico, suggested that the majority of justices are preparing to overrule Roe v. Wade, the 1973 decision that established a national constitutional right to an abortion.

What can be expected now when looking at the case and breach of the Supreme Court’s behind-the-scenes deliberations and discussions? What happens next?

What is Roe v. Wade?

The Supreme Court Decision in the Roe v. Wade case of 1973 found that the right to abortion was a fundamental right protected by the 14th Amendment and its due process clause.

Under the current precedent, women have the right to an abortion before the fetus can survive outside the womb, generally considered between 22 and 24 weeks of pregnancy.

What will happen if Roe v. Wade is overturned?

With the Dobbs v. Jackson Women’s Health Organization, the justices have been considering the state of Mississippi’s defense of a state law that seeks to ban abortions after 15 weeks.

The court has agreed to consider whether Roe v. Wade should be overturned as part of the case.

If the court overturned Roe, the issue would become a matter for the states to decide. If the leaked draft decision stands, many states will choose to preserve abortion rights, while others will move to restrict the procedure or ban it altogether.

Does the leaked Supreme Court draft opinion mean the decision is sure?

The leaked opinion was a first draft written by Justice Samuel Alito. The substance and tone may have evolved since it was written in February.

According to a statement by the court, the draft “does not represent a decision by the Court or the final position of any member on the issues in the case.”

After justices initially vote on a case, decisions undergo considerable revisions as the justices circulate draft opinions for days, weeks, and months.

The drafts are circulated between the chambers, with justices offering support, feedback, and criticism in writing until the court reaches a final ruling.

Dissenting and concurring opinions frequently accompany the final decision on the court’s decision. Justices, on some occasions, can change their views during deliberations.

What did the leaked draft say?

The Alito-written draft said the Constitution makes no reference to abortion and says that none is implied or implicitly protected by any constitutional provision.

There is also no longstanding U.S. tradition or history of protecting abortion rights that justify recognizing said right as part of the constitutional guarantee to due process, wrote Justice Alito.

The draft says, “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.”

What happens next at the court?

Recently, Chief Justice John Roberts said the leak wouldn’t affect the court’s work.

He directed the marshal of the court to launch an investigation into who was responsible for the leak. From now until the end of June, the court will announce decisions in dozens of cases it has considered in recent months.

The case on abortion was expected to be one of the final rulings the court is expected to announce before its summer break.

What makes this leak so extraordinary?

The secrecy of behind-the-scenes deliberations is unlike many other institutions in Washington, D.C. Leaks are rare, with only a limited number of individuals at court with access to the confidential deliberative materials.

Law clerks who work for each justice have loyalty to the court and other incentives to respect the confidentiality of the court. They also put their professional livelihoods at risk if drafts or information is leaked.

Any past leaks have tended to be on a smaller scale, nothing approaching the leak of a full-scale draft opinion on a case the court has not yet decided.

Which states are implementing stricter abortion laws?

Twenty-two states, including Michigan and Texas, already have laws that could ban most abortions if Roe v. Wade is overturned.

Some state laws are considered “dormant laws” from before the 1973 decision, while others are “trigger bans” that can go into effect after the Supreme Court issues a decision.

Nine states, including Florida and Oklahoma, have already passed measures restricting abortion during the current legislative sessions.

Concurrently, seven states, including New Jersey and California, have strengthened abortion protections.