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The draft abortion ruling that shook the states

May 4, 2022

I was awake Monday night when the country issued a collective gasp. 

That was when Politico — the Washington, D.C.-area news outlet — revealed the existence of a draft opinion by the U.S. Supreme Court that would overturn Roe v. Wade, the nearly 50-year old precedent that recognized a woman’s constitutional right to an abortion. This leak was a bombshell: I’d never seen anything like this in 25 years of covering the court and legal affairs. 

Soon, cable news networks provided blanket coverage, friends and family members exchanged exhilarated or despairing messages and anti-abortion activists and abortion rights supporters convened in front of the high court to give voice to their passions.

While justices before now contorted themselves to find common legal ground on this most controversial of issues, the leaked draft was anything but mealy-mouthed. Roe and its legal progeny “must be overruled,” wrote Justice Samuel A. Alito, a George W. Bush appointee, in provisionally upholding Mississippi abortion regulations that narrowed the window to get the procedure. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” (Chief Justice John Roberts Jr. has since confirmed the authenticity of the document and vowed to investigate the leak.)

But what should we make of all of this? Does this unofficial, unauthorized document even matter?

Here are five ideas to keep in mind as we continue to make sense of what has happened and of what may lie ahead. 

Nothing has changed — yet. 

Abortion is still legal in the United States. Different states have different laws governing when someone can get an abortion. The leaked draft is nonbinding and does not hold the weight of law. But the fact that the opinion was penned and circulated strongly suggests there may be at least five justices leaning toward overturning Roe, eliminating federal constitutional protections for abortion rights and allowing each state to decide for itself whether to allow the procedure at all. But draft opinions are just that — a first take of ideas on paper – and they can and do change. And there may very well be other drafts circulating that take a more nuanced approach or come to a different conclusion altogether. Drafts are often used by justices as a way to give colleagues a glimpse into their thinking and to encourage those who may be undecided to weigh in with changes that could bring them to one side or the other.

For many women, even Roe is not a safeguard. 

Access to abortion was already extremely limited in Mississippi. The state has one clinic that provides this service – Jackson Women’s Health Organization, the party that challenged the state’s proposal to ban abortions beyond 15 weeks of gestation and whose case is the subject of the draft opinion. Unless you have abundant means or live in relatively close proximity to Jackson so as not to incur the cost of travel, abortion was essentially off-limits already. In short, people with limited incomes were already foreclosed from seeking an abortion – a fact lamented by many health care providers and advocates for choice. 

Abortion rulings don’t just affect abortion services. 

My colleague, Erica Hensley, has been reporting on a women’s health clinic in the Deep South that is being forced to reckon with its financial future if abortion is outlawed. In that private clinic, abortion services provide the bulk of its revenue. If that avenue is closed down, the clinic may not be able to stay open to provide the myriad other health services to the low-income women it serves. 

Justice Alito’s reassurances may not be particularly reassuring.

Near the end of the draft opinion, Justice Alito notes that the U.S. Solicitor General, who represents the U.S. government and sided with the Jackson clinic in challenging the Mississippi abortion restrictions, argued that a further narrowing or elimination of abortion rights could have deleterious effects on other rights recognized by the court, such as same-sex marriage. “[T]o ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right,” Alito wrote. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

Alito argues, among other things, that the Constitution’s failure to explicitly mention abortion rights and the country’s long history of not permitting or even criminalizing abortion is evidence that the court in 1973 essentially invented this right. That, Alito concludes, goes beyond the authority bestowed on justices by the Constitution and mandates that Roe be struck down. Similar – if not identical – arguments could be made of landmark rulings from the last 60 or so years that recognized the right of married couples to use contraception without government interference and the right of same-sex couples to marry. 

Reproductive rights is a global issue.

As evidenced by the article co-published today by The Fuller Project and The Cut, access to safe and affordable abortions is a matter of concern for many women around the globe. Hanna Kozlowska chronicles the plight of pregnant women who fled the violence in Ukraine and found refuge in Poland.  But they’re now faced with a new reality that compounds their struggles: the inability to secure an abortion for an unwanted pregnancy because of Poland’s restrictive laws. Some of the women whose stories were shared with Hanna said that they’d been raped by Russian soldiers.

Join us for a special a Zoom briefing noon ET Wednesday, where Fuller Project CEO Xanthe Scharff, Editor-in-Chief Eva Rodriguez and data reporter Erica Hensley—who’s been covering reproductive rights in the South for more than a decade—will discuss the draft abortion ruling.

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