Last night, the news broke that someone leaked the Supreme Court's draft opinion on overturning Roe v. Wade. Witnessing a SCOTUS draft opinion leaked is unprecedented, and it has sparked a national conversation about abortion and the major court cases that have shaped the legality of abortion over the years.
POLITICO reported last night that they were given the initial draft majority opinion that voted to overturn Roe v. Wade. “Roe was egregiously wrong from the start,” Justice Samuel Alito wrote in the 98-page draft. "Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division."
One source familiar with the matter said that Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett (all the Republican-appointed justices) have voted with Alito in this case after they listened to oral arguments in December. However, this is only a draft opinion and justices can change their mind over the course of deliberation and throughout different drafts. We won't know the answer on this case until the final opinion is released.
But what implication will this decision have on our country if Roe v. Wade is in fact overturned? What does it mean for abortion nationwide? Let's start by talking about Roe v. Wade and its historical significance.
The Historical Significance of Roe v. Wade
In 1969, Norma L. McCorvey found out she was pregnant with her third child. She lived in Texas, where abortion was only allowed for cases of rape or incest or to save the life of the mother. She considered falsifying a story of rape in order to abort her baby, but there was no police report to validate her claim, and when she visited a facility to attain an illegal abortion, she discovered that it had been shut down by authorities.
McCorvey teamed up with Linda Coffee and Sarah Weddington, two recent graduates of the University of Texas Law School, who brought forth a lawsuit on behalf of McCorvey, who was referred to as Jane Roe throughout the case in order to protect her identity. They argued that Roe had the right to obtain an abortion in a legal setting, and the U.S. District Court for the Northern District of Texas agreed. Texas appealed the decision to the Supreme Court, and the case reached the court in 1970.
Roe v. Wade meant the federal government didn't have the power to stop abortion in the first trimester.
Over the next couple of years, the Supreme Court justices argued and debated the matter. They referred to the First, Fourth, Ninth, and 14th amendments and cited McCorvey's "right to privacy." They cited previous cases that ruled that birth control, marriage, and child rearing all fell under "zones of privacy," and these zones were “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
In 1973, the Supreme Court ruled that a woman has the liberty to have an abortion without excessive government restriction from the federal level. That doesn't exactly mean that a woman can get an abortion whenever and wherever she wants. It means that the federal government doesn't have the power to stop abortion in the first trimester of pregnancy. Until the point of fetal viability, the decision was left to the state, which is why various states have passed different legislation that draws a hard line in the sand on when a woman can have an abortion.
One more important Supreme Court case you should know is Planned Parenthood v. Casey, which upheld Roe v. Wade but threw out the trimester framework and instead adopted the viability argument. In other words, the federal government cannot interfere with an abortion until the point of viability, and from there the decision is deferred to the state. However, what viability means isn't so cut and dry. In the 1970s, viability was considered at 28 weeks, but today there are many experts who agree that the advances of modern medicine have lowered the age of viability to 23 or 24 weeks.
What It Would Mean If the Supreme Court Overturned Roe v. Wade
The draft opinion that was leaked to POLITICO referred to both Roe v. Wade and Planned Parenthood v. Casey. So what would it mean if these landmark cases were overturned? Well, it's probably easier to start with what won't happen.
If the justices do in fact maintain the votes that were apparent in the most recent draft opinion and Roe v. Wade is overturned, that would mean the federal government has no role in legislating abortion.
“The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion,” the draft said. “Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”
If Roe v. Wade is overturned, then states would be left to create their own legislation regarding abortion.
Our country is set up on the concept of federalism, which means that there are multiple levels to the government. The federal, national government is responsible for broader governance of larger territorial areas, while the smaller areas are left to the governance of state and local authority. The founding fathers put this system into place in order to prevent too much power falling into the hands of a large tyrannical government.
So if Roe v. Wade is in fact overturned, the states and elected representatives would be left to create or amend their own legislation in regards to abortion. Of course, more liberal states such as California and New York will likely not make any changes to their laws, but you can certainly expect more conservative states like Texas, Florida, and Tennessee to crack down on abortion.
There is nothing pro-women about abortion. In fact, it's patently absurd to think that aborting a baby simply because he or she is not wanted is a decision that belongs in civilized society. Not only does abortion end in the killing of an innocent child, but it results in lasting psychological damage (and sometimes even physical damage) to women. The sooner we can abolish abortion, the sooner we can treat women and children with the dignity they deserve.