Early this week, an initial draft majority opinion by conservative justice Samuel Alito of the US Supreme Court was published by Politico. The leaked document stated, Roe v Wade "must be overruled". The leaked document, drafted by Justice Alito touches various topics concerning the constitutionally protected right of abortion granted by Roe v Wade and the subsequent...
Early this week, an initial draft majority opinion by conservative justice Samuel Alito of the US Supreme Court was published by Politico.
The leaked document stated, Roe v Wade "must be overruled".
The leaked document, drafted by Justice Alito touches various topics concerning the constitutionally protected right of abortion granted by Roe v Wade and the subsequent 1992 Planned Parenthood v. Casey decision. While rejecting Roe's logic and legal protections, Justice Alito stated that the right to abortion is not protected by the 14th Amendment's Due Process Clause. The Due Process Clause of the 14th Amendment guarantees "due process of law" before the government may deprive someone of "life, liberty, or property."
Noting that the Constitution makes no reference to abortion, the leaked document stated that "no such right is implicitly protected by any constitutional provision. … It is time to heed the Constitution and return the issue of abortion to the people's elected representatives."
"Roe was egregiously wrong from the start. 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." Justice Samuel Alito in the leaked document.
Soon, the 98-page document that was leaked made headlines all over the world. The document contained the draft decision in a much-anticipated case of Dobbs v. Jackson Women's Health Organization. In this case, the plaintiff challenges Mississippi's ban on abortion after 15 weeks. If the ban is upheld, then the constitutional right to abort within 24 weeks, enshrined in Roe v Wade will be undermined. Significantly, while confirming the authenticity of the document, Chief Justice John Roberts also stated that the leaked document does not represent the Court's final position, as justices sometimes change their votes while draft decisions circulate. The court's holding will not be final till it is published.
It has been reported by Politico that, four other Republican-appointed justices had voted with Justice Alito, while three Democratic-appointed judges are working on one or more dissents. The final vote will be cast by Chief Justice John Roberts.
Among other issues, Justice Alito, also comments on the sensitive race issue, by stating that proponents of Roe v Wade desired "to suppress the size of the African American population. … It is beyond dispute that Roe has had that demographic effect. A highly disproportionate percentage of aborted fetuses are black."
Justice Alito also addresses the impact of the present decision, "We cannot allow our decisions to be affected by any extraneous influences such as concern about the public's reaction to our work. …We do not pretend to know how our political system or society will respond to today's decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision."
While leaks are rare in the Supreme Court, this is not the first time a US Supreme Court document was leaked. It has been pointed out by Jonathan Peters, a media law professor at the University of Georgia, that in the original case of Roe v Wade, there were two leaks.
What Is Roe V Wade?
In 1973, the US Supreme Court established a constitutional right to abortion. The facts of this case were a 22-year-old unmarried woman found herself pregnant for the third time. In a Texas Court, she alleged that prohibition of abortion was unconstitutionally vague, and it violated her right to privacy. The case was filed against Henry Wade (district attorney of Dallas County, Texas), as it was his job to enforce prohibition of abortion unless a woman's life depends on it. The US Supreme Court ruled in her favour (7-2) and allowed woman to have an absolute right to an abortion within the first 3 months of her pregnancy (24 weeks).
While delivering his opinion, Justice Harry Blackmun stated that government's interest in protecting women's health must be balanced against the "potentiality of human life".
Prior to this 1973 decision, abortion was legal in 4 states of the United States and allowed under limited circumstances in 16 of them. The court's decision nullified the Texas ban and all others.
Since then, there have been several challenges to Roe v Wade but all have failed.
Other Countries
There are several categories under which 'right to abortion' is categorised.
- Completely prohibited
- To save a woman's life
- To preserve health (physical and/or mental)
- Broad social and economic grounds
- On request (gestational limits start from 12 weeks)
According to Center for Reproductive Rights, there are a total of 24 countries where abortion is prohibited. About 42 countries allow abortion to save a woman's life. 72 countries allow abortion on request, mostly within 12 weeks. Several countries, including India also allow women the right to abortion on broad social and economic grounds, such as a woman's financial condition, etc.
In Brazil, abortion is illegal, except for cases of rape, risk to life of the mother and/or if the child is missing a part of their brain or skull. Several countries allow for women to abort their fetuses if the fetus is born with disabilities, it is a common ground for abortion. However pro-life movements, in Poland removed this exception to abortion, it has now banned woman from accessing abortion in cases of severe and irreversible fetal abnormalities.
The pro-life movement has inspired pro-choice movements too, Chile could be the first Latin American country to constitutionally enshrine abortion rights. In 2018, Ireland legalised abortion up to 12 weeks. In 2019, Northern Ireland decriminalised abortion and in 2020 New Zealand too followed suit.
Once the decision is published, US would become one of the four countries in the world to have curtailed the right to abortion in 30 years. Besides the leak being unprecedented, over-turning Roe v Wade would mean that the 50-states within the US can regulate abortions. Some would protect abortion laws and others may outright ban it. Outright ban on abortion would increase in unsafe abortions which is a major cause of maternal deaths and morbidities. The South and Midwest would immediately limit access to abortion.
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