Roe vs. Wade and the United States Supreme Court

According to the news site Policythe U.S. Supreme Court voted to strike down Roe vs. Wade – the key decision of 1973 which granted women a broad right to abortion.

Roe currently protects, within limits, a woman’s right to terminate a pregnancy. Without it, states would be free to make their own abortion laws. A slew of Southern and Midwestern states already have laws in place that would make abortion illegal almost immediately if Roe were overturned, which now seems extremely likely. Other states, like New York, have laws that would protect abortion access even in Roe’s absence.

The situation would then look much like the early 1970s, with a patchwork of state laws across the country, each with different regulations and requirements. Women could have access to abortion in some states and face criminal penalties in others.

What is a draft opinion?

The move to overthrow Roe is detailed in a 98-page document published in full by Politico. This is the first draft of an opinion written by Judge Samuel Alito on February 10. If the document is what it appears to be, that would suggest that it represents the view of the majority of the court.

Draft opinions are part of normal court practice. About a day after the oral argument, the judges meet in a private conference to discuss the cases they heard in that session. They proceed to a provisional vote and a judge is appointed to write the opinion of the court.

The elected judge and his legal assistants then work on drafting an opinion. Other judges may choose to write individual opinions supporting the provisional vote (competitions) or contesting it (dissents). Once a draft is completed, it is circulated to the other judges for comment. Some may choose to join the review, others may request changes. Dissenting justices often target the key arguments of the majority opinion to attack, hoping to find a sympathetic audience and establish principles for the future.

That means it’s not unreasonable to expect that Alito’s February draft has already gone through revisions. These changes may be minor, such as the choice of wording or the structure of the argument. They could also be more meaningful, reshaping the arguments on which the opinion is based.

What is highly unlikely, however, is a change in the end result. This means that if the leaked draft opinion is genuine, Roe is very likely to be overturned.

What does the draft decision say?

Most notable about the opinion is how forcefully Alito challenges the legitimacy of the original 1973 abortion ruling, which essentially said such a right was implicit in the US constitution.

In a key paragraph he writes:

Roe was terribly wrong all along. His reasoning was exceptionally weak and the decision had damaging consequences. And far from achieving a national settlement of the abortion issue, Roe and Casey [a 1992 case that largely upheld Roe] inflamed the debate and deepened the division. It is time to respect the constitution and return the question of abortion to the elected representatives of the people.

Alito’s arguments are rooted in an originalist understanding of the American constitution. It is a legal approach according to which laws, including the constitution, must be applied as they were understood when they were adopted. Alito argues on several pages that abortion was not an accepted or protected right in the United States for much of the nation’s history prior to 1973. As such, it cannot be accepted as “deeply entrenched in our history and tradition” – the standard the court considered. for cases involving rights not explicitly mentioned in the constitution.

For anyone who thought the court might tread lightly if it chose to overturn such an important legal precedent, Alito’s opinion is a wake-up call.

How did we learn of this decision in advance?

Politico reports that the draft was provided by a “person familiar with court procedures” and notes that “the appearances and timing of this draft are consistent with court practice.” It is, according to the media, an authentic document.

Such leaks from the Supreme Court are extremely unusual. As a lawyer Stephen Carter wrote in 2017, the court was considered the “latest leak-proof institution”. When information spellit is usually behind-the-scenes information about internal deliberations and disagreements rather than documents revealing a decision in advance.

In 1979, Bob Woodward and Scott Armstrong’s book, Brothers, reported on the internal debates within the court of the early 1970s, Roe’s era. Former clerk Edward Lazarus recounted similar feuds in the late 1980s in Closed roomspublished in 1998.

But the last time the results of a case were leaked in advance appears to have been in 1986making the unauthorized publication of Alito’s opinion a significant and rare breach of the secrecy that typically surrounds the court’s work.

What happens next?

The court is unlikely to comment on the leaked notice and is almost certain to remain silent on its contents. The next time we will hear from the court on this issue is when the final opinion is delivered, most likely sometime before the end of the court’s term in late June or early July. There will be no announcement in advance.

Dedicated field observers will follow the online schedule at court website, looking for the dates highlighted in yellow, i.e. the days when the publication of notices can be expected. For most of us, the first we will know is in the headlines of the newspapers reporting the result. We know, however, that surprises are no longer expected after this. Roe is almost certain to be knocked down.


Emma Longassociate professor of American history and politics, University of East Anglia

This article is republished from The conversation under Creative Commons license. Read it original article.

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