When Madi* heard the news of the leaked Supreme Court draft majority opinion indicating that Roe v. Wade will likely be overturned, she was in her car, stopped at a red light. The Texas college student immediately started crying.
She knew quite a bit about what the end of Roe, the 1973 landmark decision that legalised abortion in the U.S., could mean for people in her position. Madi found herself pregnant last autumn, and had to travel to Mississippi to get an abortion due to Texas’ bounty hunter law, S.B. 8, which essentially makes having an abortion impossible after about six weeks in her state. If Roe v. Wade falls, it means millions more Americans may be in Madi’s position — but worse — soon.
“I’ve been being so open about my abortion so people know just how hard it is to get one in a state without access,” she told Refinery29 Monday night shortly after the leaked 98-page document was published by POLITICO, (it has yet to be verified by other outlets). “I’ve been advocating so hard, and I don’t want others to have to go through what I went through and have to be forced to stay in a pregnancy. There’s already a million roadblocks, and it’s heartbreaking to find out that it seems like this will be the decision.”
Although most abortion activists weren’t surprised by what the draft opinion said, they were deeply troubled. “This leaked opinion is horrifying and unprecedented, and it confirms our worst fears: that the Supreme Court is prepared to end the constitutional right to abortion by overturning Roe v. Wade,” Alexis McGill Johnson, president and CEO, Planned Parenthood Federation of America, said in a statement to Refinery29. Others put it more simply: “I’m numb,” tweeted Laurie Bertram Roberts, executive director of the Yellowhammer Fund in Alabama.
And as Madi put it: “I went through so many struggles [even when] Roe v. Wade was still in effect, so I can't imagine the magnitude of how many people will be affected,” she told me. “This is major for your people — your wives, your girlfriends, your sisters, your daughters. For your family and your friends.”
Here’s what you need to know about the leaked draft opinion and the future of your reproductive rights.
Will Roe be overturned?
It’s important to note that this is just a draft. Justices can and occasionally do change their votes after draft opinions make their rounds, and the ruling won’t be official until it’s published. The draft itself may change.
In a rare statement on Tuesday morning, the Court and Chief Justice John Roberts put out a rare statement saying: "Although the document described in yesterday’s reports is authentic, it does not represent a decision by the Court or the final position of any member on the issues in the case."
Many expected the official holding wouldn’t be released until June, and a leak like this is unprecedented, as no decision in modern history has been released publicly while the case was still pending. But if this draft accurately frames what’s to come, the consequences will be calamitous, abortion rights activists and lawyers say.
What exactly did the leaked document say?
The document summed up what many of us had suspected was coming for months: A majority of justices will likely overturn Roe and the subsequent 1992 decision Planned Parenthood v. Casey, which upholds Roe and bans states from disallowing abortion before viability, or when a fetus can survive outside of the womb. “Roe was egregiously wrong from the start,” wrote Justice Samuel Alito in the draft opinion in the case Dobbs v. Jackson Women’s Health Organization, which challenged Roe and Casey, obtained by POLITICO. “We hold that Roe and Casey must be overruled.”
According to the POLITICO report, the four other justices appointed by Republicans voted with Alito, including Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. It’s unclear how Chief Justice Roberts will vote, though the three Democratic-appointed justices are working on one or more dissents, POLITICO reported. (Although Supreme Court decisions like this usually come out with lots of fanfare as though a vote just happened, decisions are actually made and written over the course of months.) Alito, in the leaked document, argues that Roe is a flawed decision that created a right that’s not mentioned directly anywhere in the constitution. He says that the issue was effectively torn away from what he sees as the political branches of government.
Aside from coming for Roe and Casey, the Dobbs decision draft, as it stands, also mentioned the Fourteenth Amendment, which, in simplest terms, grants equal protection to all. This could have major repercussions for future rulings. “Roe expressed the ‘feel[ing]’ that the Fourteenth Amendment was the provision that did the work, but its message seemed to be that the abortion right could be found somewhere in the Constitution and that specifying its exact location was not of paramount importance,” Alito wrote, per POLITICO.
This is a big deal, explains Bertram Roberts from the Yellowhammer Fund. “The concern people need to have is that Roe v. Wade rests on the right to privacy and equal protection that is secured in the Fourteenth Amendment,” she tells Refinery29. “Once you knock down Roe, the problem is, then you can knock down other cases under that same line of judicial thinking, like Obergefell, which is same-sex marriage. Like the cases that have upheld that non-married… and married people can have contraception.”
In a footnote, Alito also brings up race. He mentioned that some very early abortion advocates had eugenicist views and uses this as part of his argument in the decision. “Some such supporters have been motivated by a desire to suppress the size of the African American population,” Alito wrote, per the POLITICO document. “It is beyond dispute that Roe has had that demographic effect. A highly disproportionate percentage of aborted fetuses are black.”
Bertram Roberts says this argument is disingenuous and not evidence-based, noting she disavows eugenicist ideas. “It’s so gross to me — for them to be doing this disgusting projection as if they care about Black lives and Black babies when the reason that Black people are disproportionally represented is because of medical racism [and a] lack of access to healthcare and family planning," she says. "It’s strange to me to talk about protecting Black babies and moms when you already don't do that.”
What happens if Roe V. Wade is overturned?
Abortion access is already in dire straits. Many people in the U.S. already haven’t been able to access abortion, due to financial and logistical barriers, as well as state rules. “Roe is the floor, not the ceiling,” as Marcela Howell, president and CEO of In Our Own Voice, the National Black Women’s Reproductive Justice Agenda, told Refinery29 earlier.
The Guttmacher Institute has predicted that 26 U.S. states would be certain or likely to ban abortion outright without Roe. Because Roe has generally protected the right to an abortion at a federal level, without it, abortion access would then be left in the hands of the states to make their own laws about whether abortion is illegal and up to what point in a pregnancy. Of course, they’ve already done this through laws that have largely been blocked by the courts, due to Roe’s precedent (with the exception of S.B. 8 in Texas, which used a loophole to get around judicial review).
And this is just the tip of a very dangerous iceberg. When asked for comment, Laurence H. Tribe, university professor emeritus of constitutional law at Harvard Law School (who's directly quoted in the Alito draft), referred Refinery29 to his tweet: “If the Alito opinion savaging Roe and Casey ends up being the Opinion of the Court, it will unravel many basic rights beyond abortion and will go further than returning the issue to the states: It will enable a GOP Congress to enact a nationwide ban on abortion and contraception.” In fact, The Washington Post reported that Senate Republicans “have started mobilising around potential federal legislation to outlaw abortion after six weeks of pregnancy” to be introduced in the Senate.
Christie Roberts, the Democratic Senatorial Campaign executive director, echoed this sentiment in a statement sent to Refinery29. “If this report is true, this Republican attack on abortion access, birth control, and women’s healthcare has dramatically escalated the stakes of the 2022 election,” Roberts said. “At this critical moment, we must protect and expand Democrats' Senate majority with the power to confirm or reject Supreme Court justices.”
McGill Johnson added of the news: “While we have seen the writing on the wall for decades, it is no less devastating and comes just as anti-abortion rights groups unveil their ultimate plan to ban abortion nationwide.”
In response to the leaked document, President Joe Biden said that “basic fairness and the stability of our law demand” the Supreme Court doesn’t overturn Roe. But if it does, "it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose,” he added.
Why… was this memo leaked?
No one knows for sure, but there’s lots of speculation. “I think [whoever leaked the memo] wanted to see what the response would be from supporters,” Bertram Roberts says. Others have speculated that the draft was leaked to put pressure on justices.
Anti-abortion groups disagree with abortion advocates on almost every point about abortion but are aligned in that the leak was a big deal. “The Supreme Court wishes to return the issue of abortion to the American people, and for that reason this draft opinion language is to be applauded,” said Steven H. Aden, chief legal officer and general counsel at Americans United For Life, in a statement to Refinery29. “It is outrageous that this draft language was leaked, presumably by pro-abortion staffers within the Court. It is a cynical and naked attempt to pressure justices to alter course in Dobbs.” Of course, we don't know for sure who leaked the memo, it could have been any staffer or even a Justice.
What can I do to protect abortion rights in the meantime?
You can donate to abortion funds, such as the Yellowhammer Fund, Indigenous Women Rising, and many others. For those in America, Twitter discourse is talking about “rallying” or coming up with “women’s health convoys to provide transportation for women who choose abortion.” But these networks already exist, as Bertram Roberts points out on Twitter.
“People think we can just battle this by voting, but that’s not the only fight,” Bertram Roberts says. “It’s that and also making sure you’re talking to your [district attorney and putting pressure on them so] they’re not criminalising people who are self-managing abortions. It’s making sure that you’re mobilising around your local elections, and educating people around you.”
The end of Roe may appear to be nigh, but you can take action.
This story was originally published at 11:30 a.m. on 5/3/2022. It was updated with a statement from the Supreme Court on 5/3/2022 at about 12:30 p.m.
This post will be updated as new information comes to light about Roe v. Wade, Dobbs v. Jackson Women’s Health Organization, and Planned Parenthood v. Casey.