An abortion rights protester at the US Supreme Court this week (Photo: Al Drago/Bloomberg via Getty Images)
An abortion rights protester at the US Supreme Court this week (Photo: Al Drago/Bloomberg via Getty Images)

PoliticsMay 5, 2022

What’s happening to US abortion rights?

An abortion rights protester at the US Supreme Court this week (Photo: Al Drago/Bloomberg via Getty Images)
An abortion rights protester at the US Supreme Court this week (Photo: Al Drago/Bloomberg via Getty Images)

A draft opinion leaked this week suggests the US Supreme Court has voted to overturn abortion rights, prompting nationwide protests and warnings that other civil rights could be at risk. How did it come to this, and what does it mean?

What just happened?

The first draft of US Supreme Court justice Samuel Alito’s opinion in Dobbs v Jackson Women’s Health Organisation, the case that will determine whether pregnant people have a constitutional right to choose abortion in the US, was leaked to the media organisation Politico this week. The draft majority opinion appears to overturn Roe v Wade, the 1973 decision that guaranteed federal constitutional protections of abortion rights, and Planned Parenthood v Casey, a 1992 decision that largely maintained the right.

A leak of this sort has never happened before in the history of the US – people are gobsmacked that it occurred at all.

What’s the background to this decision?

Roe v Wade was the landmark 1973 Supreme Court decision that established the constitutional right to choose abortion. Its rationale was based on the right to privacy, a right not explicitly spelled out in the US constitution, but inferred from the cumulative moral effect of the rights that are spelled out.

From the 1980s onward, anti-abortion activists, mainly fundamentalist Christian churches, have lobbied state legislatures to restrict abortions in small but significant ways, slowly working up to the reversal of Roe. In 1992, the Supreme Court decided in Planned Parenthood v Casey to uphold Roe, but to allow states to increase the restrictions placed on abortion, provided they didn’t present an “undue burden”.

In 2016, the Supreme Court decided in Whole Women’s Health v Hellerstedt that targeted regulation of abortion providers (TRAP) laws requiring abortion clinics to meet unnecessarily stringent standards (to force them to close or go bankrupt) were unconstitutional because they represented an undue burden.

Dobbs is the latest in a series of cases inviting the Supreme Court to overturn Roe. The Mississippi law in question prohibits abortion after 15 weeks’ gestation. Based on the principle of stare decisis, the rule of precedent, the Supreme Court would not normally have agreed to hear the case, because abortion is allowed up to viability under Roe.

The Supreme Court is currently controlled by Republican-appointed judges, with six conservative judges and three liberals. According to Politico, in addition to Alito, four of the Republican-appointed judges had voted to overturn Roe. CNN reports that Chief Justice Roberts did not want to completely overturn the decision, meaning he would have dissented from part of Alito’s draft opinion, likely with the court’s three liberals.

Who leaked it?

No one knows who leaked the opinion. 

Some conservatives suspect a court liberal leaked it in the hope the groundswell of outrage would convince one of the conservative justices to change their vote, or influence Roberts to push harder for a decision that wouldn’t allow states to ban abortion outright. It is not a compliment to Roberts to suggest he is swayed by public opinion.

But some liberals suspect a court conservative leaked it, possibly to forestall rioting by reducing the shock when the final decision is released, or to force the court to release the decision earlier. It has been suggested the liberal justices are taking their time with their dissents to increase the amount of time that people can still receive abortion care.

Whoever leaked it, the fact that this happened is a stain on Roberts’ tenure, because it suggests lax management and a culture of less probity and impartiality than previous courts. 

Associate justice Amy Coney Barrett and chief justice John Roberts at the Supreme Court in 2021 (Photo: Jabin Botsford/The Washington Post via Getty Images)

What happens now?

The leak will certainly be investigated. While the Supreme Court confirmed the document was legitimate, it reiterated that it was simply a draft and that it may not be the finalised decision on the subject.

As Politico reported, “Deliberations on controversial cases have in the past been fluid. Justices can and sometimes do change their votes as draft opinions circulate and major decisions can be subject to multiple drafts and vote-trading, sometimes until just days before a decision is unveiled. The court’s holding will not be final until it is published, likely in the next two months.”

If the Supreme Court does use Dobbs to overturn Roe, then the regulation of abortion falls to the individual states, as it was before Roe. This will result in a patchwork of access – states like California, New York, Oregon and Illinois will have access to abortion as usual, while states like Texas, Florida, Missouri and Mississippi will ban abortion. 

People who live in states that ban abortion would then have severely limited options: travel to a state with access, which is expensive; get an illegal abortion, which could result in prosecution and a long jail term; or carry the pregnancy and give birth, whether they like it or not.

What about Congress?

Congress has options. It could pass the Women’s Health Protection Act of 2021, which establishes the right to abortion at the federal level, so it applies to all states. It could increase the number of Supreme Court justices, as their number (nine) is not set out in the constitution. This would dilute the current conservative majority, which many see as illegitimate because of the Senate’s refusal to consider then president Barack Obama’s nominee, Merrick Garland (because it was too close to an election), coupled with the Senate’s insistence on approving Trump’s nominee, Amy Coney Barrett (even though that came even closer to an election).

But Congress cannot access those options. This is because while Democrats have a majority in both houses, their Senate majority exists in name only. Two Democratic senators, Kyrsten Sinema and Joe Manchin, have blocked changes to Senate rules that would allow legislation to be passed on a simple majority, rather than the 60-vote supermajority required to overcome a filibuster. They have also blocked the Women’s Health Protection Act, and the John Lewis Voting Rights Act. Nothing can be done as long as they hold office.

What does this mean for the Supreme Court?

Common law courts rely on the principle of stare decisis, the rule of precedent. This means that cases with similar fact scenarios should be decided the same, unless they can be distinguished in a significant way. The purpose of precedent is to make the law consistent, predictable and stable. 

If the Supreme Court uses Dobbs to overturn Roe, it will have turned its back on the precedent Roe represents. This throws all previous decisions into question – if the rule of precedent no longer holds, then the court’s decisions are unpredictable and arbitrary.

Abortion rights demonstrators outside the Supreme Court this week (Photo: Al Drago/Bloomberg via Getty Images)

What about pregnant people?

The fate of people with unwanted pregnancies in the US will depend on where they live. 

In some states, abortion will be legal and accessible. In others, people will have to scrape together travel money in addition to the cost for an abortion in order to exercise autonomy over their own bodies. People who need abortions for medical reasons may find doctors unwilling to provide abortions for fear of prosecution. Some will send away for medicines for a medical abortion; some will be caught and prosecuted. Some will access surgical abortions from people with good skills who care about helping others; some will access surgical abortions from unscrupulous, unsafe providers. Some will be injured as a result and some will die. 

Some states will empower rapists and random bystanders to sue survivors who get an abortion. Some states may try to limit the ability of women to cross their borders to access abortion, which is blatantly unconstitutional. But with this Supreme Court, who knows if that matters any more?

Decisions that rely on the right to privacy may be overturned in course, like Griswold, which legalised contraception. Obergefell (marriage equality), Lawrence (legalised gay sex), Loving (legalised interracial marriage) and other decisions around equality could also be at risk.

Terry Bellamak is an abortion rights campaigner and former president of the Abortion Law Reform Association of NZ (ALRANZ).

The Spinoff’s political coverage is powered by the generous support of our members. If you value what we do and believe in the importance of independent and freely accessible journalism – tautoko mai, donate today.

Mad Chapman, Editor
Aotearoa continues to adapt to a new reality and The Spinoff is right there, sorting fact from fiction to bring you the latest updates and biggest stories. Help us continue this coverage, and so much more, by supporting The Spinoff Members.Madeleine Chapman, EditorJoin Members

Get The Spinoff
in your inbox