Roe v Wade: Is abortion about to become illegal in the US?

A leaked document obtained by Politico reveals that the US Supreme Court could soon vote to overturn a landmark ruling that grants Americans the constitutional right to an abortion. 

The 98-page initial draft of the majority opinion, written by Justice Samuel Alito, suggests that five of the nine judges on the bench privately voted to strike down the 1973 Roe v Wade case, which is the 49-year old ruling that makes abortion legal at a national level. 

In the document dated 10 February, Justice Samuel Alito wrote: “Roe was egregiously wrong from the start”, before stating that the decision on whether to ban it or not should be returned to individual states.

Speaker of the House of Representatives Nancy Pelosi and Senate Majority Leader Chuck Schumer issued a joint statement saying that if the report was accurate, the “Supreme Court is poised to inflict the greatest restriction of rights in the past 50 years”.

What does this mean for the right to abortion in the US? Here’s what you need to know.

What is Roe v Wade?

A landmark court decision in 1973 granted Americans the right to get an abortion in the United States. It came after a Texan mother who went by the pseudonym “Jane Roe” sued for her right to terminate a pregnancy in 1970. “Wade” was the defendant Henry Wade, the Dallas County district attorney at the time.

After years of legal challenges and appeals supported by the US women’s rights movement, Roe’s case was eventually heard by the Supreme Court. The judges ruled by a 7-2 majority in 1973 that the Texas law was unconstitutional. The Court struck down laws that made abortion illegal in several states and ruled that abortion would be allowed up to the point of foetal viability, which is the time after which a foetus can survive outside of the womb. 

What is the Mississippi case, and why is it important?

The Supreme Court has been reviewing a case – Dobbs v Jackson Women’s Health Organisation – which is challenging a law passed in the US state of Mississippi in 2018, banning abortion after 15 weeks. 

The document obtained by Politico was labelled “1st Draft” of the “Opinion of the Court” and was reportedly about the Dobbs case. The report said that a court majority was inclined to uphold Mississippi’s abortion ban and that there could be five justices in favour of overturning Roe.

Abortion rights activists say the ruling violates the rights ushered in by Roe v Wade, which does not cut off abortion access until a foetus becomes viable at 24 weeks. At present,  Roe v Wade guarantees abortion in the first two trimesters of pregnancy before this viability and then states can choose whether or not to extend that access .

They have further warned that this case would be significant because conservative judges hold a 6-3 super-majority on the Supreme Court. More progressive judges held a slim majority in the Court until Donald Trump cherry-picked three new “pro-life” justices after becoming president in 2017.

What does the leaked document reveal? 

A decision on Dobbs v Jackson Women’s Health Organisation was not expected to be announced before the Court’s current session ends in June. However, according to Politico, based on Alito’s opinion, the Court would find the Roe v Wade decision that allows abortions performed before a foetus would be viable outside the womb – between 24 and 28 weeks of pregnancy – was wrongly decided because the US Constitution makes no specific mention of abortion rights.

After stating that Roe was “egregiously wrong” and that it was time to return the issue to the “people’s elected representatives”, Justice Alito held that both Roe and “Casey” – another landmark abortion judgement of the Court from 1992 that reaffirmed the right to terminate pregnancies up to the point of foetal viability – “must be overruled.”

In the leaked document, Alito wrote: “Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each state from regulating or prohibiting abortion [….] The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions.”

While the document is only a draft that reflects the opinion of Justice Alito, Politico reported that four other judges on the bench – Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – have also voted in favour.

What will it mean if Roe v Wade is overturned?

If few or no amendments are made to Justice Alito’s draft, then the effect on abortion access in the US will be swift.

Already, 22 states have laws or constitutional amendments in place in the vent that Roe v Wade is overturned. According to an analysis from the Guttmacher Institute, more than half of US states would “likely or almost certainly” ban abortions. While abortion is likely to remain legal in liberal states, if the top US court strikes down the ruling, “trigger laws” could instantly make abortion illegal in states such as Arkansas. Similarly, Kentucky, Louisiana and South Carolina would ban terminations six weeks into pregnancy. 

Depending on how the Court words its final judgement, legal abortion access could “effectively end for those living in much of the American South and Midwest, especially those who are poor,” according to the New York Times.

Abortion activists say there will be “seismic” changes in American society if Roe is overturned. “The first line in the draft is that this is a moral issue,” said Annie McDonnell, a 19-year-old student at George Washington University. “If it’s a moral issue, you shouldn’t be depriving us of our choice.”

It remains unclear whether there have been subsequent changes to the leaked draft, and the Court’s ruling will not be final until it is published, which is likely to be within the next two months.