SCOTUS Leaks Draft Opinion to Overturn Abortion Rights: What It Could Mean for the Future of Reproductive Rights

5/5/2022-Written by SJ / Cover image by @andipandiliftsheavy

On Monday evening a Supreme Court draft majority opinion was leaked to POLITICO in which the court voted to overturn its 1973 Roe v. Wade decision. 

“Roe was egregiously wrong from the start,” the document, which appears to have been drafted by Justice Samuel Alito, reads. “We hold that Roe and Casey must be overruled,” he insists. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

The landmark Roe v. Wade case was decided by the Supreme Court nearly 50 years ago. It established that abortions are a constitutional right in this country and protects a pregnant person’s choice to have one. Along with Roe v. Wade, the leaked document also renounced the 1992 Planned Parenthood v. Casey decision, which was the first Supreme Court case after the Roe v. Wade decision to challenge abortion laws, specifically regarding consent requirements and waiting periods. 

What does this mean for right now?

It is important to note the leaked document is a draft, not a final opinion. Nothing changes yet. It is not uncommon for draft opinions like this one to undergo numerous draftings before the ultimate vote. Additionally, the justices still have time to change their minds between now and when the official opinion is published. It is not uncommon for justices to change their votes, vote-trade, etc. POLITICO estimates the court’s holding will be finalized and published “in the next two months.” 

If adopted, what will the Supreme Court draft mean for the future of reproductive rights?

If the draft is adopted, abortion rights would change very quickly and would differ immensely from state to state. Reproductive rights would no longer be protected on a federal level, instead, they would be left up to “state’s rights,” meaning individual states would create their own laws on the matter.

 Almost half of the states in the country have laws on their books that currently conflict with Roe v. Wade. Those laws are not enforceable, but if Roe is overturned, they would go into effect by default. 

Right now Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, and Wyoming, all have “trigger laws” in place banning abortion. A “trigger law” is a law that is created to go into effect when/if the circumstances surrounding its legality are changed, in this case, when/if Roe is overturned. 

In addition to the aforementioned thirteen states, Alabama, Arizona, Michigan, West Virginia, and Wisconsin all have laws on their books banning abortion that pre-date the Roe decision. Like the “trigger laws,” they aren’t enforceable now but they could be if circumstances change. 

Several additional states have post-Roe abortion bans on their books, which could take effect if Roe is overturned. While others states have expressed intent to pass laws banning or limiting abortion.

What to do next?

Brigitte Amiri, Deputy Director of the ACLU Reproductive Freedom Project explained on the organization’s website, “This doesn’t change the law now. If you want to express your support, I would say tap into your local reproductive rights, justice, and health community and find out how you can be involved. Donate to your local abortion fund, and to practical support organizations that make sure people can access care. These are all critically important parts of the infrastructure that exist to make sure people can get care, and that infrastructure needs to be invested in. You can also contact your local representatives, and your senators. This is the time to let elected officials know where you stand on this issue and how important it is to you.”

How to find your local abortion fund:

Click here to find your local abortion fund and donate if you’re able.

How to contact your local representatives and senators:

Click here to find out who your local representatives are and how to contact them.

Click here to find out who your senators are and how to contact them.