Key TakeawaysA leaked Supreme Court draft opinion reveals a potential decision to strike downRoe v. Wade.At least 13 states have “trigger laws” that would ban nearly all or all abortions onceRoeis overturned.Legal experts saidRoegranted not only a constitutional right to abortion, but also provided access to safe abortion care.
Key Takeaways
A leaked Supreme Court draft opinion reveals a potential decision to strike downRoe v. Wade.At least 13 states have “trigger laws” that would ban nearly all or all abortions onceRoeis overturned.Legal experts saidRoegranted not only a constitutional right to abortion, but also provided access to safe abortion care.
“Roewas egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences,” Justice Samuel Alito wrote in a draft majority opinion. “And far from bringing about a national settlement of the abortion issue,RoeandCaseyhave enflamed debate and deepened division.”
A majority of Americans opposes overturningRoe v. Wade, according to a JanuaryCNNpoll. Almost 60% respondents said that if the court did overturnRoe v. Wade, they would like to see more permissive abortion laws in their state.
“Justice Alito has crafted an opinion suffused with contempt and rage that demeans both jurists and ordinary people who believe that the Constitution protects the right of women and girls to control their own reproductive lives,”Tobias Barrington Wolff, JD, a Jefferson B. Fordham professor of law at the University of Pennsylvania Law School, said in an emailed statement.
“We should not have this draft in front of us,” he said. “But we do, and if the final opinion looks substantially like this draft, it is a grave moment in our constitutional history.”
Abortions are considered a common and critical part of health care. About a quarter of women in the United States will have an abortion at some point in their lives, according to the Guttmacher Institute.
While the draft has yet to be finalized, overturningRoeandCaseydecisions will disproportionately affect people who face economic barriers. In 2014, three quarters of abortion patients were low income and almost half of them were living below the poverty level.
Abortion restriction may further harm people of color. According to an analysis published in the journalObstetrics & Gynecology, Black people in Texas were more than twice as likely to die from pregnancy-related complications than White people.Banning abortion forces people who are already at a higher risk of maternal mortality to go through with an unsafe pregnancy, or alternatively, an unsafe abortion.
The Disproportionate Impact of Abortion BanIn Texas, where the SB. 8imposed the most restrictive abortion bans in the country, experts have predicted that Black maternal mortality rates could rise to 33% in the next year as a result,Timereported.
The Disproportionate Impact of Abortion Ban
In Texas, where the SB. 8imposed the most restrictive abortion bans in the country, experts have predicted that Black maternal mortality rates could rise to 33% in the next year as a result,Timereported.
What DoesRoe v. WadeProtect?
Protecting the right to abortion didn’t mean granting new access to abortions. Abortions began long before the passing ofRoe v. Wade, although they were largely illegal and unsafe.Roe v. Wadedidn’t merely provide a right to abortion, it provided access to safe abortion.
“People who think that abortion didn’t occur beforeRoeare wrong,”Christa Ramey, JD,a civil rights attorney at Ramey Law PC, told Verywell. “Women just died beforeRoe.”
Because ofRoe v. Wade, the government is not permitted to interfere with private conversations between patients and their healthcare provider, and therefore cannot punish people for seeking or going through with an abortion.
Research Shows Texas Abortion Ban Didn’t Stop People From Seeking Abortion Care
Roe v. Wadealso strove to protect the rights of a viable child. A fetus was deemed viable when it could survive outside a pregnant person’s womb, the justices decided. Before that point, the patient’s right to privacy—and the right to terminate their pregnancy—was of first importance.
What Did Planned Parenthood v. Casey Change?
Planned Parenthood v. Caseywas a follow-up case toRoe v. Wadein 1992. TheCaseyruling amended parts of theRoedecision to remove the trimester distinction and placed more restrictions on abortion care. If the Supreme Court strikes downRoe, it will in turn strike downCasey.
“Caseyallowed for restrictions to take place,” Ramey said. “But nevertheless, whatCaseydid was affirm thatRoewas the law of the land.”
Some ofCasey’schanges involved creating leeway for states to intervene on abortion care. To loosely guide which restrictions were legal or prohibited, the new ruling set up an “undue burden standard.” Under this standard, states could place some restrictions around abortion access, but not so far as imposing “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”
For example, states may not require patients to tell their spouse that they are seeking an abortion as that could place an “undue burden” to their ability to access care. However, some states mayrequire pregnant people to look at ultrasound images of their fetusbefore an abortion is performed.
Christa Ramey, JDThat’s the slippery slope here: The right to privacy that exists between a patient and a doctor is now in jeopardy. There are other constitutional rights that have flown fromRoeandCasey, including the right to marry anyone you choose.
Christa Ramey, JD
That’s the slippery slope here: The right to privacy that exists between a patient and a doctor is now in jeopardy. There are other constitutional rights that have flown fromRoeandCasey, including the right to marry anyone you choose.
Does This Draft Opinion Affect Abortion Care Now?
Some states, likeTexasand Oklahoma, have already placed substantial restrictions on abortion care. At least 13 states have passed “trigger laws" that would ban all or nearly all abortions onceRoeis overturned.Democratic governors in other states, such as New Mexico and North Carolina, have promised to protect abortion access regardless of the final court decision.
The leak revealed that five of nine justices—a court majority—support the decision in the draft. However, if one judge changes their mind, the majority will switch andRoewill be upheld.
“That’s all that’s needed. That majority opinion could become a dissenting opinion if one vote changes,” Ramey said. However, she said this scenario is unlikely because the court “has become so politicized.”
Why the Texas Abortion Ban Keeps Changing
Could the Court Strike Down Other Privacy Protections Too?
ARoe-Caseystrike down could have spillover effects that extend beyond abortion access. It could be used as a precedent to overturn other civil rights legislation that deal with privacy.
“That’s the slippery slope here: The right to privacy that exists between a patient and a doctor is now in jeopardy,” Ramey said. “There are other constitutional rights that have flowed fromRoeandCasey, including the right to marry anyone you choose.”
Kim Roosevelt, JD, a professor of constitutional law at the University of Pennsylvania Law School, expressed concerns for how the potential decision could impact gay rights legislation.
“In terms of consequences, it adopts a methodology that suggests recent gay rights decisions, from same-sex marriage to the invalidation of sodomy bans, are not secure," Roosevelt said in an emailed statement. “If there are five justices who endorse this draft, it’s unlikely that they will stop withRoe.”
What This Means For YouAbortion remains legal in every state as of now, but some states have imposed restrictions to abortion care. IfRoe v. Wadeis overturned, it is up to individual states to decide their legal parameters on abortion access.
What This Means For You
Abortion remains legal in every state as of now, but some states have imposed restrictions to abortion care. IfRoe v. Wadeis overturned, it is up to individual states to decide their legal parameters on abortion access.
4 SourcesVerywell Health uses only high-quality sources, including peer-reviewed studies, to support the facts within our articles. Read oureditorial processto learn more about how we fact-check and keep our content accurate, reliable, and trustworthy.Guttmacher Institute.The U.S. abortion rate continues to drop: once again, state abortion restrictions are not the main driver.Guttmacher Institute.Characteristics of U.S. abortion patients in 2014 and changes since 2008.Baeva S, Saxton DL, Ruggiero K, et al.Identifying maternal deaths in Texas using an enhanced method, 2012.Obstet Gynecol. 2018;131(5):762-769. doi:10.1097/AOG.0000000000002565Guttmacher Institute.Abortion policy in the absence of Roe.
4 Sources
Verywell Health uses only high-quality sources, including peer-reviewed studies, to support the facts within our articles. Read oureditorial processto learn more about how we fact-check and keep our content accurate, reliable, and trustworthy.Guttmacher Institute.The U.S. abortion rate continues to drop: once again, state abortion restrictions are not the main driver.Guttmacher Institute.Characteristics of U.S. abortion patients in 2014 and changes since 2008.Baeva S, Saxton DL, Ruggiero K, et al.Identifying maternal deaths in Texas using an enhanced method, 2012.Obstet Gynecol. 2018;131(5):762-769. doi:10.1097/AOG.0000000000002565Guttmacher Institute.Abortion policy in the absence of Roe.
Verywell Health uses only high-quality sources, including peer-reviewed studies, to support the facts within our articles. Read oureditorial processto learn more about how we fact-check and keep our content accurate, reliable, and trustworthy.
Guttmacher Institute.The U.S. abortion rate continues to drop: once again, state abortion restrictions are not the main driver.Guttmacher Institute.Characteristics of U.S. abortion patients in 2014 and changes since 2008.Baeva S, Saxton DL, Ruggiero K, et al.Identifying maternal deaths in Texas using an enhanced method, 2012.Obstet Gynecol. 2018;131(5):762-769. doi:10.1097/AOG.0000000000002565Guttmacher Institute.Abortion policy in the absence of Roe.
Guttmacher Institute.The U.S. abortion rate continues to drop: once again, state abortion restrictions are not the main driver.
Guttmacher Institute.Characteristics of U.S. abortion patients in 2014 and changes since 2008.
Baeva S, Saxton DL, Ruggiero K, et al.Identifying maternal deaths in Texas using an enhanced method, 2012.Obstet Gynecol. 2018;131(5):762-769. doi:10.1097/AOG.0000000000002565
Guttmacher Institute.Abortion policy in the absence of Roe.
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