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The potential fall of Roe v Wade explained

A leaked Supreme Court document shows that a right-leaning majority is prepared to overturn the landmark ruling which made access to safe and legal abortions a constitutional right in the US.

On Monday, Politico published a leaked Supreme Court document showing that a majority of the right-leaning court is prepared to overturn 1973’s landmark Roe v Wade decision, thereby nullifying the constitutional right to abortion on the federal level.

Having originally circulated in February, the opinion was written for Dobbs v. Jackson Woman’s Health Organization by arch-conservative Justice Samuel Alito, who declares at one point that ‘Roe was egregiously wrong from the start.’

For this reason, it appears to be near-concrete proof that when the court makes its official ruling (expected some time next month), it will abolish reproductive health rights in the US and drastically change the very fabric of the country’s society to an incomprehensible degree as a result.

So, where did it all begin, what is actually going on, and what is the potential fallout of such a verdict? The picture is complicated, but here’s a breakdown of what we know.

Read Justice Alito's initial draft abortion opinion which would overturn Roe v. Wade - POLITICO

First, some background context

In 1969, 25-year-old Norma McCorvey challenged the criminal abortion laws in Texas under the pseudonym ‘Jane Roe.’

She did so because the state forbade abortion as unconstitutional, except in cases where the mother’s life was in danger.

Defending the anti-abortion law was Henry Wade, the district attorney for Dallas County (hence Roe v Wade). In 1973, her appeal made it to the US Supreme Court, where her case was heard.

She argued that abortion laws in Texas went against the US Constitution because they infringed a woman’s right to privacy.

By a vote of seven to two, the court justices ruled that governments lacked the power to prohibit abortions and judged that a woman’s right to terminate her pregnancy was protected by the US Constitution.

This set in motion the ‘trimester system,’ giving American women an absolute right to an abortion in the first three months of pregnancy, allowing some government regulation in the second trimester, and declaring that states may restrict or ban abortions in the final trimester as the foetus nears the point where it could live outside the womb.

It also established that in the final trimester, a woman can obtain an abortion despite any legal ban only if doctors certify it is necessary to save her life.

Yet in the 49 years since Roe v Wade, anti-abortion campaigners have regained some lost ground. In 1980, the Supreme Court upheld a law that banned the use of federal funds for abortion except when necessary to save a woman’s life.

A decade later, it approved more restrictions, including allowing states to prohibit abortions at state clinics or by state employees.

Not only this, but it determined that states can restrict abortions even in the first trimester for non-medical reasons.

Protestors gather outside the Supreme Court in Washington on Tuesday, May 3, 2022, after a draft Supreme Court opinion published by Politico on Monday suggested the court is considering a decision that would overturn the landmark 1973 Roe v. Wade decision that established a constitutional right to abortion. The stunning leak of a draft opinion, which USA TODAY could not independently verify, set off an unexpected firestorm around one of the nation's most divisive culture war issues and simultaneously raised questions about the court's deliberations and its ability to keep those discussions secret.

Consequently, many women today have to travel further for the procedure and pay more for it, with poorer women bearing the brunt.

On this note, this isn’t just about Roe.

Abortion is among a number of fundamental rights that SCOTUS has recognised, which includes contraception in 1965interracial marriage in 1967 and same-sex marriage in 2015.

Though these rights are not explicitly mentioned in the Constitution, they are linked to autonomy, dignity, equality, and more importantly, personal privacy, notes JD Candidate, Levi Eckman.

Enter: the 14th Amendment.

More commonly known as the ‘equal protection’ clause, it was ratified in 1868 and expanded protections of rights for citizens at the state and federal level. It also extended both civil and legal rights for formerly enslaved Black citizens who were subject to discriminatory state laws.

The 14th Amendment has been invoked in major Supreme Court rulings involving civil rights, such as the 1954 Brown v. Board of Education ruling that found racial segregation of public schools violated the equal protection clause.

It also establishes the right to due process at the state level, often used by the Supreme Court to strike down state legislation that restricts personal liberties and interests not explicitly mentioned in the Constitution, like the right to privacy.

The Roe ruling relied on this clause when it concluded that prohibiting abortion violated a right to privacy under the Constitution by restricting a person’s ability to choose to have an abortion.

The aforementioned landmark legal decisions on abortion, contraception, interracial marriage, and same-sex marriage all fall under the 14th Amendment’s due process clause.


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Everything you need to know about what’s happening at present

According to the draft majority opinion written by Alito and obtained by Politico, the Supreme Court has provisionally voted to overturn Roe v Wade, wholeheartedly repudiating the 1973 ruling that enshrined the constitutional right to abortion, and a subsequent 1992 decision – Planned Parenthood v Casey – that largely upheld that right.

It’s the first time in modern history that the public has seen a Supreme Court draft decision while a case was still pending.

If this goes ahead, it would bring about the end of nearly 50 years of federal constitutional protection of abortion rights and state lawmakers would have the power to restrict or entirely ban abortion if they wanted to.

Unleashing chaos on the country, 26 states are certain or likely to ban abortion if and when Roe is overturned (according to the Guttmacher Institute) and in some of the most crucial swing states, ‘trigger laws’ that go back to before the Civil War could immediately be used.

What's the future for abortion rights and Roe v. Wade? - POLITICO

‘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,’ reads the leaked document.

It also suggests that Roe’s ‘survey of history ranged from the constitutionally irrelevant to the plainly incorrect,’ argues that its reasoning was ‘exceptionally weak,’ and asserts that the decision has had ‘damaging consequences.’

And, adding insult to injury, Alito also appears to pre-empt the backlash by stating ‘we cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work, we do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey, and even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision.’

Unsurprisingly, Alito was right.

Shaking the US to its core, the perennially divisive topic has taken centre stage on social media and in public discourse this week, with responses to the draft ruling ranging from shock and horror to fury and calls to action – both in terms of pressuring lawmakers to codify reproductive health access into law, and to prepare for a post-Roe future.

‘This is chilling news coming from the US, it is the latest disturbing attack on reproductive rights amidst a global backlash against women’s equality,’ says leader of the UK’s Women’s Equality Party (WEP), Mandu Reid. ‘We’re talking about a handful of people – mostly conservative men – making life changing decisions about women’s bodily autonomy without their consent. The normalisation of patriarchal violence in a world-dominating country like the US will have impact on the reproductive rights of people everywhere.’

Still, it remains to be seen whether the impending final ruling will fully reflect the anti-reproductive health and anti-bodily autonomy sentiment of the leaked draft.

Regardless, accusations that the version published by Politico was intended to be used as leverage to soften the forthcoming official decision have begun flying.

After Roe: it’s not just about abortions

Before we go any further, it’s important to understand the difference between reproductive rights, and reproductive justice.

Oftentimes, people think the terms are synonymous with one another, but the two are distinctly and philosophically different.

The former is centred around the legal right to access reproductive healthcare services like abortion and birth control.

What good is a right, however, if you can’t access the services it’s provided?

This is why reproductive justice is critical, as it links reproductive rights with the social, political, and economic inequalities that affect a woman’s ability to receive the support she needs.

Core components of this include equal access to safe abortion, affordable contraceptives, and comprehensive sex education, as well as freedom from sexual violence.

Forced pregnancy’s violation of personal liberty is obvious, but it isn’t far-fetched to say that the human rights of the LGBTQ+ community and reproductive rights are also irrevocably connected.

What message does the highest court of the land send when other personal rights fall outside a framework that’s “deeply rooted” in American history?

Overturning Roe will provide a road map for future attempts to eliminate other guaranteed liberties and make it unlikely that the court will recognize due process protections in new areas such as the rights of transgender people.

The leaked draft refutes this, but activists aren’t convinced.

Tears and tension as protesters swarm outside US supreme court | Roe v Wade | The Guardian

Undermining one landmark legal decision based on the 14th Amendment undermines it all, including the Courts’ legacy, creating a cataclysmic impact that will deny the dignity and rights of people across the nation.

People of colour, the poor, and other marginalized people will likely bear the brunt in the event Roe is overturned.

Already, Black women are more likely to die from pregnancy-related causes, and more likely to be criminalised and imprisoned for their pregnancy outcomes.

Abortion restrictions already disproportionately burden Black women – Black women consistently have had the highest abortion rates, followed by Latinx women. About half of U.S. states already have restrictive abortion laws set to go into effect should Roe be overturned.

Those who already disproportionately have trouble accessing health care will be most impacted. People may travel hundreds of miles to states where abortions are still legal. Young and low-income people, who are disproportionately of colour, may not be able to afford the cost of travel or safe procedures. If forced to go through with an unwanted pregnancy, many may not even have access to childcare, resulting in devastating mental and financial impacts.

Eckman notes that newer generation of lawyers tend to be more radical and progressive and will likely find trouble seeing the legitimacy of a Court that would overturn a fifty-year decision in which most Americans agree with the initial opinion, with most Americans polling in favour of abortion protections that have been granted subsequently since Roe.

He also heeds that the country is also in danger, not only from the decision, but from the harm that will ensue when protests surely erupt.

Traditionally in the United States, Black communities and communities of Colour have suffered great harm at the hands of the police during times of civil rights change.

There will likely be disproportionate harm that is yet to be experienced.

The fight for the right to have an abortion is a long historic struggle against a set of values that restricts the rights of, not only women, but LGBTQ+ people and people of colour.

Abortion is healthcare. Let's ensure it's safe. - Faculty of Sexual and Reproductive Healthcare

The future surely lies in the hands of young people – mere hours after the leak, protesters began to assemble outside the Supreme Court, including Jack Lilley, a student at American University.

‘It is 12:30 in the morning, and unfortunately, we have to be at the Supreme Court because our government isn’t supporting and uplifting women and we have to use the time that we should be spending studying to be here.’

A Gen Z organization is already enlisting people to flood anti-abortion websites following the draft leak. Since then, Gen-Z for Change’s three TikTok videos about the draft opinion have racked up more than 2 million views collectively.

Currently, a very active network of abortion funds is helping raise money for low-income women to pay for their abortion care, travel, childcare, lodging, food, and being able to take time off work.

Advocates for Youth have also set up a Youth Abortion Support Collective that commits to helping young people get resources and support that they need.