Roe v. Wade: What to know after Supreme Court confirms leaked document is real
In 1973, the U.S. Supreme Court made abortion legal throughout the country in a groundbreaking decision during the Roe v. Wade case.
Nearly 50 years later, on the evening of Monday, May 2, Politico published a 98-page leaked draft of a majority opinion, written by Justice Samuel Alito, that said the Supreme Court is striking down its Roe decision.
The Supreme Court confirmed the document as legitimate in a statement on Tuesday, May 3.
“Although the document described in yesterday’s reports is authentic, it does not represent a decision by the Court or the final position of any member on the issues in the case,” Chief Justice John Roberts said in a statement.
Here are five things to know about the landmark case.
What is Roe v. Wade?
“Roe has been the law of the land for almost fifty years, and basic fairness and the stability of our law demand that it not be overturned,” President Joe Biden said in a statement on May 3.
In a 7-2 vote, the Supreme Court ruled on Jan. 22, 1973, that under the U.S. Constitution’s Due Process Clause of the Fourteenth Amendment, citizens have a “right to privacy” and this protects a woman’s decision to terminate a pregnancy. The opinion was delivered by Justice Harry A. Blackmun.
Before the ruling, 30 states totally banned abortion, Alito wrote in the document published by Politico.
The case goes back to how “Jane Roe” — a pregnant, Texas woman whose real name was Norma McCorvey — filed a lawsuit against the district attorney of Dallas County, Henry Wade, in 1970, according to Encyclopaedia Britannica. She lived in the county at the time and was seeking an abortion.
With the lawsuit, Roe challenged a Texas law in place that made abortion illegal unless it was required to save a woman’s life, according to the Oyez Project. Ultimately, the case rose to the Supreme Court.
Specifically, the court ruled that during the first trimester of a pregnancy, or the first 12 weeks, a woman’s decision to have an abortion was up to her — meaning local governments could not interfere, according to Cornell Law School.
For the second trimester, 14 to 26 weeks of pregnancy, the court ruled that “the state could regulate (but not outlaw) abortions in the interests of the mother’s health,” according to Cornell Law School.
“After the second trimester, the fetus became viable, and the state could regulate or outlaw abortions in the interest of the potential life except when necessary to preserve the life or health of the mother.”
In a 1992 Supreme Court decision during the case of Planned Parenthood of Southeastern Pennsylvania v. Casey, “Roe’s trimester-based framework” was done away with, and it was ruled that women can have an abortion ahead of “fetal viability,” or the earliest point when a fetus can be born, according to Encyclopaedia Britannica. This case upheld Roe v. Wade’s ruling legalizing abortion.
What happens if Roe v. Wade is overturned?
“If the Court does overturn Roe, it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose,” Biden said in his statement.
The legality of abortion would get decided on the state level if Roe v. Wade gets struck down.
As a result, at least 13 states would immediately ban abortion, Axios reported. These states are Texas, Oklahoma, Arkansas, Louisiana, Mississippi, Tennessee, Kentucky, Missouri, South Dakota, North Dakota, Wyoming, Utah and Idaho.
“Trigger laws” have been passed in each of these states that would allow abortion to become illegal if Roe v. Wade gets overturned, according to the outlet.
Planned Parenthood reports that 26 states would initiate actions to outlaw abortion, including the ones that would do so “immediately.”
“At the federal level, we will need more pro-choice Senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law,” Biden said.
What states would keep abortion legal if Roe v. Wade gets overturned?
It’s likely that abortion would stay legal in 21 states if Roe v. Wade gets overturned, according to an analysis conducted by the Center for Reproductive Rights.
States with statutes and laws in place that will protect abortion and provide “additional access” to it are California, Connecticut, Hawaii, New Jersey, New York, Oregon, Vermont, and Washington, the center reports.
A total of 14 states and the District of Columbia also have laws to protect abortion, but “there are limitations on access to care,” according to the center. These states are Alaska, Colorado, Delaware, Florida, Illinois, Iowa, Kansas, Maine, Maryland, Massachusetts, Minnesota, Montana, Nevada and Rhode Island, plus the District of Columbia.
What did Justice Alito say in the decision leaked by Politico?
In the document reported by Politico, Alito began by writing “abortion presents a profound moral issue on which Americans hold sharply conflicting views.”
He said 26 states have requested the court “overrule Roe and Casey and to return the issue of abortion to the people and their elected representatives.”
Alito describes the background of Roe v. Wade and then Planned Parenthood of Southeastern Pennsylvania v. Casey and wrote that the cases “must be overruled.”
“Roe was egregiously wrong from the start,” he wrote. “Its reasoning was exceptionally weak, and the decision has had damaging consequences.” .
Because of how individuals across states have differing opinions on abortion, Alito wrote that the United States’ “understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.”
“Roe was on a collision course with the Constitution from the day it was decided, and Casey perpetuated its errors,” Alito wrote.
Four other justices sided with Alito: Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, sources told Politico and CNN.
Meanwhile, Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan were reportedly in disagreement of the draft opinion, according to Politico.
The leaked opinion is for a case on a Mississippi law banning abortions after 15 weeks, which the court heard arguments on last year. The final decision is expected in the coming months, CNN reported.
What to know about decision being leaked
The Supreme Court confirmed in its statement that Politico “published a copy of a draft opinion in a pending case.”
Roberts said the leak was “a betrayal of the confidences of the Court” and was “intended to undermine the integrity of our operations.”
A marshal of the court has opened an investigation into who leaked the document, Roberts said.
Supreme Court analyst and Duke University professor of law and political science Neil Siegel called the leak “extraordinary and egregious” in a statement.
“The apparent draft opinion is not final. When I clerked at the court, the draft main dissent in a case eventually became the final majority opinion. I am not suggesting that anything like that will happen now, but it’s not over until the opinions are handed down,” Siegel said.
He added that if the leaked opinion does become official, it “is pretty much the worst-case scenario for defenders of reproductive rights.”
“What the leak and the draft have in common is a disregard for the legal and public legitimacy of the court -- and a failure to register that the justices and their clerks are temporary occupants of an institution that is greater than themselves.”
This story was originally published May 3, 2022 at 1:14 PM with the headline "Roe v. Wade: What to know after Supreme Court confirms leaked document is real."
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