As the Supreme Court’s current session draws to a close, advocates on both sides of the abortion issue are awaiting the court’s opinion in a case that could overturn draft majority opinion in Dobbs v. Jackson Women’s Health indicated the high court was preparing to strike down the 1973 ruling that established a constitutional right to an abortion.. In early May, a leak of a
The, written by Justice Harry Blackmun, rested, in part, on the due process clause of the 14th Amendment. Blackmun said the clause included the “right to privacy, including a woman’s qualified right to terminate her pregnancy.”
In the leaked draft, first reported by Politico, Justice Samuel Alito called Blackmun’s take “egregiously wrong from the start.”
Dobbs v. Jackson Women’s Health concerns a 2018 Mississippi law that bans most abortions after the first 15 weeks of pregnancy, far earlier than the timeline established by Roe and later cases.
The draft, which Chief Justice John Roberts confirmed is authentic, isn’t a final ruling. The justices still have an opportunity to change their minds. But that window is closing, as the court has only a few more days to release more than a dozen rulings.
Here’s what you need to know about Dobbs v. Jackson Women’s Health, including when the court could issue its opinion and what it would mean for abortion access in the US.
What is Roe v. Wade?
Roe v. Wade is a landmark 1973 Supreme Court ruling that determined a woman has a constitutional right to choose to have an abortion without undue government interference.
A pregnant single woman, using the pseudonym Jane Roe, brought a class action suit challenging a Texas law banning abortion except in cases in which the mother’s life was at risk.
In an opinion written by Blackmun, the court determined that laws like the Texas ban violated, among other rights, the due process clause of the 14th Amendment, which protects the “right to privacy, including a woman’s qualified right to terminate her pregnancy.”
Later cases affirmed the right to an abortion within the first 24 weeks of pregnancy, after which time a fetus is considered viable outside the womb. In 1992’s Planned Parenthood v. Casey, the court further determined laws could not impose an “undue burden” on reproductive rights.
What is the Mississippi abortion law under consideration?
The court is preparing to issue an official ruling on Dobbs v. Jackson Women’s Health Organization, which addresses the constitutionality of a 2018 Mississippi law banning almost all abortions after the first 15 weeks of pregnancy.
That’s much shorter than the timeline established by Roe v. Wade and subsequent cases.
The Gestational Age Act, as the measure is known, makes exceptions in cases of a medical emergency or severe fetal abnormality, but not for pregnancies resulting from rape or incest.
After Republican Gov. Phil Bryant signed it into law, Jackson Women’s Health Organization, the last state-licensed abortion clinic in Mississippi, challenged the measure almost immediately.
In November 2018, the US District Court for the Southern District of Mississippi ruled in the clinic’s favor and, a little more than a year later, the Fifth Circuit unanimously upheld the lower court’s decision.
“States may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman’s right,” the Fifth Circuit said, “but they may not ban abortions.”
In October 2021, Mississippi brought the case before the Supreme Court, which agreed to hear arguments.
When will the Supreme Court issue its abortion ruling?
The Supreme Court often holds major decisions until closer to its summer recess: The ruling in Brown v. Board of Education, which determined segregation in public schools was unconstitutional, was announced on May 17, 1954.
Typically opinions are released on Tuesday and Wednesday mornings, but the decision in Obergefell v. Hodges, which recognized same-sex marriage on the federal level, was made public on June 26, 2015 — a Friday.
The court didn’t issue its decision in Dobbs with other rulings on Tuesday, June 21. The next decision day is Thursday, June 22, but the court added an additional day to the schedule and will also be releasing opinions on Friday.
With 13 opinions left to release, though, some may not be announced until early July.
Does the draft mean the court is going to overturn Roe v. Wade?
In the leaked draft, which Roberts confirmed is authentic, Alito wrote, “We hold that Roe and Casey must be overruled.”
But the draft is not final and dissenting opinions were not released as part of the leak. Still, it suggests that five decades of a woman’s right to choose will soon be overturned, redefining reproductive rights in the US.
If the court overturns Roe, would abortion automatically be illegal across the US?
Striking down Roe would end federal protections for abortion and return the decision to individual states. While that wouldn’t make abortion illegal nationwide, 26 states have laws restricting or banning abortion that would take effect immediately, according to the Guttmacher Institute, a reproductive rights advocacy group.
Some are older measures that have simply been unenforced since 1973, but 13 states have so-called trigger laws that would immediately take effect should Roe be struck down, banning or severely limiting access to abortion within their jurisdictions.
On May 25, Oklahoma Gov. Kevin Stitt signed what’s considered the nation’s strictest abortion ban, making the procedure illegal from the earliest moments of pregnancy except to save the life of the mother or in cases of rape or incest reported to law enforcement agencies.
Four states — Alabama, Louisiana, Tennessee and West Virginia — have passed amendments explicitly declaring that their state constitution does not secure the right to terminate a pregnancy.
Separately, 16 states and the District of Columbia have passed laws protecting the right to have an abortion in case Roe is overturned.
An interactive Planned Parenthood map indicates the current status of abortion in all 50 states and how access to abortion would likely change in each if Roe v. Wade is overturned.
Who will be most impacted if Roe is overturned?
The Center for Reproductive Rights, which is providing legal counsel to the Jackson Women’s Health Organization, said that if Roe is overturned, marginalized groups “will experience the greatest harms.” Those groups include Black, Indigenous and other people of color, immigrants, people with disabilities and the economically disadvantaged.
In general, women in Republican states, especially those without resources to go elsewhere for services, will be most affected.
According to a New York Times analysis of research from Middlebury College, University of California, San Francisco, and the Guttmacher Institute, 41% percent of women of childbearing age would see their closest abortion clinic close. The average distance they would have to travel to reach one would be almost 280 miles, up from 35 miles now.
Overall, the Times found, the number of legal abortions in the country would fall by at least 13%.
What happens next in Dobbs v. Jackson Women’s Health Organization?
Politico reported that sources “familiar with the court’s deliberations” indicated that Republican-appointed justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett had voted with Alito after hearing oral arguments in December.
According to the same source, Politico reported, the three justices appointed by Democrats — Stephen Breyer, Sonia Sotomayor and Elena Kagan — were working on dissenting opinions.
The article didn’t indicate how Roberts, who was nominated by Republican President George W. Bush in 2005, would vote.
What are officials saying about the case?
Before Roberts confirmed the draft, Mississippi Attorney General Lynn Fitch said in a statement that the state “will let the Supreme Court speak for itself and wait for the court’s official opinion.”
After the leak, President Joe Biden released a statement saying that he believes a woman’s right to choose is “fundamental.”
“Roe has been the law of the land for almost 50 years, and basic fairness and the stability of our law demand that it not be overturned,” Biden said. “We will be ready when any ruling is issued.”
Vice President Kamala Harris said striking down Roe v. Wade would jeopardize a woman’s constitutional right to privacy.
“If Roe is overturned, I believe that states will then have the power to interfere in personal decisions,” Harris said at a White House roundtable in June. She expressed concern that states that have determined life begins at fertilization could restrict access to in vitro treatments and contraception.
The vice president also said striking down Roe “could clear the way for challenges to other fundamental rights,” including same-sex marriage.
What do legal scholars think of the draft opinion?
Constitutional scholars have been debating the legal merits of the Roe decision since it was issued. Even some supporters of a woman’s right to choose called Blackmun’s opinion into question.
Long before becoming a Supreme Court Justice in 1993, the late Ruth Bader Ginsburg wrote in the North Carolina Law Review that the court “ventured too far in the change it ordered and presented an incomplete justification for its action.”
In his draft opinion, Alito contended that the Constitution “makes no reference to abortion and no such right is implicitly protected by any constitutional provision.”
“From his view, the only rights guaranteed to Americans are the ones that are deeply rooted in the 18th and 19th centuries,” Thai told CNET. “That’s very few rights — and for a very slim group of people.”
Constitutional rights recognized in the 18th and 19th centuries “are the floor, not the ceiling,” said Thai, whose focus is constitutional law and the Supreme Court. “As liberty and equality have grown, the Constitution has grown, too.”
The draft opinion “disregards a lot of what most people in America consider fundamental rights,” he added. “Like the right to marry someone of a different race, the right to contraception, to sexual intimacy outside of marriage. The arguments put forward in Roe are the legal bases of a lot of rights many of us assume we have about bodily autonomy.”