What happens if Roe v. Wade is overturned? What we know about Supreme Court's leaked draft
A draft opinion by the Supreme Court leaked Monday night, showing the high court may overturn the landmark Roe v. Wade decision that established a constitutional right to abortion.
The leak itself, made public by Politico, is highly unusual: While court deliberations have leaked before, including during President Richard Nixon's administration, the release of a draft opinion is virtually unprecedented.
The draft was reportedly circulated in February, about two months after oral arguments concluded in a challenge to Mississippi's 2018 law that bans most abortions after 15 weeks of pregnancy. The outlet reported a majority of justices supported the draft opinion.
"Roe was egregiously wrong from the start," Associate Justice Samuel Alito wrote in the draft. "We hold that Roe and Casey must be overruled."
The Supreme Court on Tuesday verified the leak was authentic but pushed back on the notion that it represented the final decision of the court. Chief Justice John Roberts said in a statement that he'd launched an investigation into the leak
“To the extent this betrayal of the confidences of the court was to undermine the integrity of our operations, it will not succeed,” Roberts said. “The work of the court will not be affected in any way.”
Supreme Court deliberations are supposed to be secret.So how did a draft abortion opinion leak?
Here's what we know:
Is abortion illegal now?
No, this is the leak of a possible draft ruling. The Supreme Court was expected to release a decision in this specific case in about two months. But abortion-rights activists have been warning the court was leaning in this direction. That's in large part why the reporting by Politico is being taken so seriously.
Elizabeth Sepper, a University of Texas law professor who studies health law, said the leak could be posturing by one side or another, tempering expectations or floating a trial balloon. Still, she said the highly unusual leak is reverberating across the country.
“I think the draft is a wakeup call. The end of abortion access for many Americans is not hypothetical. A majority of the Supreme Court has cast their votes against a longstanding constitutional right to autonomy and self determination,” she said.
Report:Leaked draft Supreme Court opinion suggests majority may overturn Roe v. Wade
What is Roe v. Wade?
The Supreme Court's landmark 1973 Roe v. Wade decision is credited with legalizing abortion nationwide.
In 1969, a pregnant woman under the pseudonym "Jane Roe" challenged the constitutionality of Texas abortion laws forbidding abortions in most cases. By a vote of seven to two, the Supreme Court ruled in her favor in the case, called Roe v. Wade, finding that laws criminalizing abortions violated the Fourteenth Amendment. The decision struck down many state abortion laws during a time when abortions under many circumstances were banned in most states.
ROE V. WADE EXPLAINER:What is Roe v. Wade and how could the Texas abortion law affect it?
What does overturn mean? What does codify mean?
The U.S. Supreme Court sets precedents, meaning they typically follow previous decisions in which they resolved conflicting interpretations of the law. But sometimes, courts choose to overturn precedent, rejecting a prior interpretation of the law in favor of a new one.
To codify something is to make it a code of law. Codifying Roe v. Wade means passing either a state of federal law that would affirm abortion rights. After news broke of the leaked Supreme Court draft decision, President Joe Biden called on Congress to pass legislation to codify abortion rights.
"We will need more pro-choice senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law," he said.
Senate Majority Leader Chuck Schumer, D-N.Y., said he would hold a Senate vote on legislation to enshrine abortion rights, though the future of such a bill is entirely uncertain in the closely divided chamber.
"This is as urgent and real as it gets," he said. "Every American is going to see on which side every senator stands."
Can Biden, Congress protect abortion rights? What is a filibuster?
While Biden and Democratic vowed to use legislation to codify abortion rights, the Senate's filibuster remains an obstacle.
In effect, filibuster rules require 60 votes to end debate on legislation and move to a vote. Currently, the Senate is evenly divided 50-50 with Vice President Kamala Harris acting as a tie breaking vote.
As a result, many progressives are calling on the Senate to eliminate the filibuster rules.
Biden did not say Tuesday when asked whether he would support eliminating the filibuster to try to codify Roe. v. Wade, but White House press secretary Jen Psaki said regardless the votes in the evenly divided Senate to codify Roe. v. Wade aren't there, making any calls to eliminate the filibuster to pass abortion-rights legislation misguided.
She pointed to the Senate's 46-48 vote in March to defeat the Women’s Health Protection Act, which also sought to protect abortion rights, as an example.
“I think it's important to note that there has been a vote on this. It failed,” Psaki said. “It did not have even 50 votes, which means even if the filibuster were overturned, there would have not been enough votes to get this passed."
Instead, Democratic leaders have pointed to the November elections, hoping the issue will energize voters to elect “more pro-choice officials," Psaki said.
What will happen if Roe v. Wade is overturned? What states will ban abortion?
If the Supreme Court overturns Roe v. Wade, states would be free to make abortion illegal. Nearly half of U.S. states already have laws in place that would take effect immediately upon a Supreme Court ruling. Another 16 states and the District of Columbia have passed laws explicitly protecting abortion rights if Roe v. Wade is ever overturned, according to the Guttmacher Institute, a reproductive rights research and policy organization.
"This is going to be an unprecedented earthquake in American life," said Amelia Bonow, founder of the Seattle-based national abortion access group Shout Your Abortion.
Who is Samuel Alito? Who are the other Supreme Court judges?
Samuel Alito was nominated to the Supreme Court by Former President George W. Bush in 2005. Since then, he has been a consistent conservative voice on the court and one the the court's most outspoken proponents of religious freedom.
The other current members of the U.S. Supreme Court include John Roberts, Clarence Thomas, Stephen Breyer, Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Roberts, a member of the court's conservative wing, serves as chief justice after being nominated by Bush in 2005.
WHO IS SAMUEL A. ALITO?:What to know about the Bush-nominated Supreme Court justice
Has the Supreme Court ever overruled past decisions?
Usually, the Supreme Court doesn't revisit decisions, according to the principle known as "stare decisis," a Latin phrase for "to stand by things decided." In other words, the Supreme Court tends not to overrule past decisions, even if the composition of the court has changed.
But that's not a binding requirement, and the court has changed rulings, though rarely.
One of the most well-known rulings where the court reversed itself was the 1954 Brown v. Board of Education ruling, which struck down a 1896 ruling legalizing segregation under the "separate but equal" doctrine.
Conservatives have long targeted Roe to be overturned, and former President Donald Trump appointed three conservative justices to the bench — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — after promising to select candidates based in part on their willingness to revisit the decision.
What did Roe v. Wade actually say?The landmark abortion rights ruling, explained
Who would abortion bans in the US affect the most?
Abortion-rights activists say banning the procedures will hurt people of color the hardest. People of color have the highest rate of getting abortions in the nation, so these Americans will likely have the hardest time with unwanted pregnancies or will be forced to raise children they cannot afford or didn't want.
Advocates also say abortion bans will harm poor Americans disproportionally because they will be less able to travel to states where abortion remains legal. Advocates have raised concern that some may instead turn to illegal abortions close to home, raising the risk of death for a pregnant person.
Dr. Stella Safo, a New York-based primary care physician and founder of Just Equity for Health, a company focused on equitable health care, called the drafted decision "maddening."
"It won't stop people from getting abortions — it will stop people from getting safe abortions,” she said. “All the people who are minoritized historically in this country, and who are poor — it’s low-income women who are going to suffer the most from this and it's absolutely maddening."
ROE V WADE:Leaked abortion opinion by Supreme Court adds more fuel to already raging fire of debate
What happens next on the Supreme Court abortion decision?
We wait. The court is expected to rule on this specific case in about two months. It's possible the court could rule differently than what the draft opinion says.
In a statement, the anti-abortion rights group National Right to Life said it was waiting for the actual decision: "In response to the Politico article claiming to have a copy of the initial draft of the Supreme Court decision in Dobbs v. Jackson, National Right to Life agrees with the statement of Mississippi Attorney General Lynn Fitch who said, 'We will let the Supreme Court speak for itself and wait for the Court’s official opinion.'"
Abortion-rights groups have been gearing up for this fight for months and have vowed not to let state bans block access to abortions. They have been strengthening networks that help low-income people seeking abortions travel to states where it remains legal as well as providing access to abortion pills to induce medical abortions.
What does this mean for future civil rights cases?
Legal experts say the reasoning in this draft decision could lead the Supreme Court to overturn other civil rights protections, including gay marriage, and let states decide.
David Lane, a Denver-based civil rights attorney, said the draft decision could prompt the creation of a new "Underground Railroad" where people have to travel across state lines to exercise civil rights they once enjoyed nationally.
"There are innumerable earthshaking events that could flow from this," Lane said. "The damage that this could to do American civil liberties is incalculable."
Contributing: Joey Garrison and Dylan Wells, USA TODAY