Politico reported Monday night that it had obtained a draft opinion suggesting the U.S. Supreme Court is considering a ruling that would overturn the landmark 1973 Roe v. Wade decision that established a constitutional right to abortion.
The leak itself 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.
Politico said the draft was circulated in February, about two months after oral arguments. A Supreme Court spokeswoman declined to comment. Several legal experts consulted by USA TODAY said the leaked draft ruling has all the hallmarks of being accurate. Politico said a majority of justices supported the ruling.
“Roe was egregiously wrong from the start,” Associate Justice Samuel Alito wrote in the draft obtained by Politico. “We hold that Roe and Casey must be overruled.”
Supreme Court deliberations are supposed to be secret.So how did a draft abortion opinion leak?
Here’s what we know:
Does the leaked Supreme Court opinion mean abortion is illegal in the US now?
No, this is the leak of a possible draft ruling. The Supreme Court was expected to release a decision on 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 this reporting by Politico is being taken so seriously, because advocates expected this.
Elizabeth Sepper, a University of Texas law professor who studies health law, said the apparent 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 wildly.
“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 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 the states in the country already have laws in place that would take effect immediately upon the Supreme Court ruling. Another 16 states and the District of Columbia have passed laws explicitly protecting abortion rights in case Roe v. Wade is 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.
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, albeit 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 for being 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 too 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 abortions will hurt people of color the hardest. People of color have abortions at the highest rates in the nation and so these Americans will likely have the hardest time finding ways to get rid of unwanted pregnancies or 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, and may instead turn to illegal abortions close to home, raising the risk of death for the 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 possible 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.”