DemDaily: “We Hold That Roe and Casey Must Be Overruled”

May 3, 2022

In a devastating revelation last night, a draft opinion was leaked of the US Supreme Court's decision to strike down the landmark 1973 Roe v. Wade abortion rights decision.

If passed as written for the majority by conservative Justice Samuel Alito, then the federally-protected constitutional right to an abortion, which has been the rule of law for almost 50 years, would be overturned and the authority to implement abortion laws would be turned over to individual states.

"We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.” - Justice Samuel Alito, draft majority opinion

The leaked draft, dated February 10, 2022 and first reported by Politico, is the first known breach of its kind in the court's 232-year history.

Under court procedure, the justices would have held a preliminary vote after oral arguments were presented in the case on December 1, 2021. The final legal ruling is not expected until June. Although in the course of finalizing an opinion justices may change their votes, four of Alito's fellow conservatives -- Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett -- concurred with the draft.

While Chief Justice John Roberts is expected to dissent, the other conservatives already have the majority for passage.

The court’s three liberal members, Stephen Breyer, Elena Kagan and Sonia Sotomayor, are reportedly writing dissents.

Politico described Alito's draft opinion as "a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision – Planned Parenthood v. Casey – that largely maintained the right."

In a statement from the Court this afternoon, Justice Roberts confirmed the authenticity of the draft, but clarified "it does not represent a decision by the Court or the final position of any member on the issues in the case...To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed.” Roberts has called for an investigation into the source of the leak.

The Case: Dobbs v. Jackson Women's Health Organization. On March 18, 2018, Jackson, the only licensed abortion clinic in Mississippi, challenged the constitutionality of the state's "Gestational Age Act" in federal court. The newly-enacted law, passed by the GOP-controlled legislature and Governor, banned abortions after the 15th week of pregnancy. The US District for the Southern District of Mississippi ruled in favor of the clinic, as did the United States Court of Appeals for the Fifth Circuit. The state of Mississippi appealed to the US Supreme Court, using the case as a direct challenge to Roe v. Wade.

Under the Supreme Court's landmark 1973 decision in Roe v. Wade, the court said states could not ban abortions before fetal viability, the point at which the fetus can survive outside the womb, at around 24 weeks.

The case was the first to establish abortion as a fundamental right protected by the Due Process and Liberty Clauses of the Fourteenth Amendment.

Roe also established a trimester framework to govern abortion regulation: In the first trimester, it allowed almost no regulations; in the second, it allowed regulations to protect women’s health; and in the third, it allowed states to ban abortions so long as exceptions were made to protect the life and health of the mother.

Roe was significantly weakened In 1992, in a bitter 5-4 decision by the Supreme Court in Planned Parenthood v. Casey. While the Court preserved what it called Roe’s “essential holding” -- that women have a constitutional right to terminate their pregnancies until fetal viability -- it discarded the trimester framework in favor of a viability analysis, thereby allowing states to implement abortion restrictions that apply during the first trimester of pregnancy.

The Court also replaced the strict scrutiny standard of review for laws regulating abortion set by Roe, with an "undue burden" standard.

The Consequences
A reversal of Roe would set off a wave of restrictive laws across the country, with as many as 26 states already poised to ban all or nearly all abortions.

Of those, 13 states, primarily in the south and midwest, have "automatic trigger" laws that would immediately render abortion illegal upon confirmation of SCOTUS' decision.

16 states and DC have laws on the books that will protect abortion rights should Roe go down.

The ramifications for other individual rights, however, are also significant as Alito's draft opinion attacks the right to privacy grounded in Roe and the rights guaranteed under the Fourteenth Amendment.

"It concerns me a great deal that after 50 years (they) decide that a woman does not have a right to choose. But equally as profound is the rationale used. It would mean that every other decision related to the notion of privacy is thrown into question. It is a fundamental shift in American jurisprudence." - President Joe Biden

The Outlook
Senate Majority Leader Chuck Schumer decried the opinion this afternoon, saying "the Supreme Court is poised to inflect the greatest restrictions of rights in the past fifty years -- not just on women, but on all Americans. Under this decision, our children will have fewer rights than their parents."

Flanked by fellow Democrats on the steps of the Capital, Schumer chastised Republicans saying, "they know they are on the wrong side of history, they know they are on the wrong side of the American people. They know they will pay the consequences in the 2022 elections ... because the rights of 100 million women are now on the ballot."

The pro-choice Senators immediately called for reconsideration of the Women's Health Protection Act (WHPA), legislation that would codify abortion access nationwide by creating a statutory right for health care providers to provide, and a corresponding right for their patients to receive, abortion care -- free from restrictions and bans.

The legislation passed in the US House last September but fell short of the 60 votes needed to surpass the filibuster and succeed in the US Senate.

According to a March 11-30, 2022 Public Religion Research Institute (PRRI) poll of adults, 61% opposed overturning Roe v. Wade to just 36% who supported seeing it overturned (MOE: +/- 1.6%)

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Kimberly Scott

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Sources: NPR, SCOTUSblog, New York Times, Washington Post, CBS, MSNBC, PBS

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