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SCOTUS reproductive rights

Reproductive rights advocates protest outside the U.S. Supreme Court in Washington, D.C. on May 2, 2022 following the publication of a draft opinion suggesting Roe v. Wade will soon be overturned. (Photo: Kevin Dietsch/Getty Images)

Leaked Draft Opinion Shows Supreme Court Set to Strike Down Roe v. Wade

"While abortion is still legal, tonight's report makes clear that our deepest fears are coming true. We have reached a crisis moment for abortion access. We don't have a moment to spare—we must act now."

Brett Wilkins

A leaked draft opinion published Monday by Politico strongly suggests that the U.S. Supreme Court's right-wing supermajority will soon strike down Roe v. Wade, the landmark 1973 ruling enshrining the constitutional right to abortion.

"It's time for the millions who support the Constitution and abortion rights to stand up and make their voices heard. We're not going back—not ever."

"This is the most alarming sign yet that our nation's highest court is poised to overturn Roe v. Wade, ending the constitutional right to abortion as we know it and ripping away our freedom to decide if, when, and how to raise our families," NARAL Pro-Choice America president Mini Timmaraju said in a statement.

In a joint statement, Senate Majority Leader Chuck Schumer (D-N.Y.) and House Speaker Nancy Pelosi (D-Calif.)—who has supported anti-choice Democrats and in 2017 opined that focusing on reproductive rights helped elect former President Donald Trump—said that "if the report is accurate, the Supreme Court is poised to inflict the greatest restriction of rights in the past 50 years, not just on women but on all Americans."

"The Republican-appointed justices' reported votes to overturn Roe v. Wade would go down as an abomination, one of the worst and most damaging decisions in modern history," they added.

Noting that "the majority of Americans support Roe v. Wade," progressive Ohio congressional candidate Nina Turner tweeted that "making abortions illegal won't make them go away. It will only make them more dangerous, more expensive, and lead to the criminalization of poor women and women of color and others who need abortions."

Asserting that "Roe was egregiously wrong from the start," Alito wrote in the draft opinion—in which he is reportedly joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—that "we hold that Roe and Casey must be overturned," a reference to the 1992 case Planned Parenthood v. Casey that affirmed the constitutional right to abortion while allowing states to regulate the procedure.

"We can only do our job, which is to interpret the law, apply longstanding principles of stare decisis, and decide this case accordingly," Alito contended, referring to the legal principle of deference to precedent. Abortion has been a constitutionally enshrined right since 1973—or for a fifth of the nation's history. 

"We therefore hold that the Constitution does not confer a right to abortion," Alito added, "...and the authority to regulate abortion must be returned to the people and their elected representatives."

Reproductive rights advocates say that if Roe is struck down, more than 20 states are certain or likely to outlaw abortion, many via so-called "trigger laws."

"While this is a draft opinion and abortion is still legal, we need to brace for a future where more and more people are punished and criminalized for seeking and providing abortion care," said Timmaraju. "Now more than ever, we must support those working to provide abortion care and elect champions who will relentlessly fight for reproductive freedom and take bold action to safeguard abortion rights."

Following the draft opinion's publication, hundreds of reproductive rights advocates staged a demonstration outside the Supreme Court, where barriers had already been erected in anticipation of protests.

The Politico article's authors, Josh Gerstein and Alexander Ward, noted that "no draft decision in the modern history of the court has been disclosed publicly while a case was still pending."

Gerstein and Ward said Politico received a copy of the draft from "a person familiar with the court's proceedings" in Dobbs v. Jackson Women's Health Organization, a case challenging Mississippi's 15-week abortion ban that reproductive rights advocates have warned could prove Roe's "death knell."

In addition to Roe, Alito also takes aim at Lawrence v. Texas, the 2003 ruling overturning the state's sodomy ban, and Obergefell v. Hodges, which legalized same-sex marriage in 2015, sparking fears that this could be but the beginning of a wider rollback of civil rights won in recent decades.

Advocates stressed the imperative for Congress to act immediately to shield reproductive freedom at the federal level—and for people to stand up and fight for their rights.

"If SCOTUS is going to legislate from the bench and turn back the clock 50 years on Roe v. Wade, then the Senate needs to pass my Women's Health Protection Act," tweeted Sen. Tammy Baldwin (D-Wisc.), referring to legislation that would codify the right to abortion nationwide.

The House of Representatives approved the WHPA last September, but the measure failed to pass in the upper chamber after right-wing West Virginia Democratic Sen. Joe Manchin voted with Republicans to filibuster it.

Sen. Bernie Sanders (I-Vt.) tweeted: "Congress must pass legislation that codifies Roe v. Wade as the law of the land in this country now. And if there aren't 60 votes in the Senate to do it, and there are not, we must end the filibuster to pass it with 50 votes."

Sen. Elizabeth Warren (D-Mass.) asserted that "it's time for the millions who support the Constitution and abortion rights to stand up and make their voices heard. We're not going back—not ever."


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