Late Monday night on May 2, 2022, Politico released a leaked draft opinion of the Supreme Court from February 2022, in which the Court voted to strike down the landmark Roe v. Wade abortion case; which in 1973 protected women’s bodily autonomy and liberty to choose to have an abortion without ‘excessive’ government intervention or restriction, citing the Due Process Clause of the Fourteenth Amendment of the Constitution as its reasoning.
However, in the February 2022 draft majority opinion - written by Justice Samuel A. Alito Jr., who was appointed by Republican President George W. Bush in 2006 - the Court declares that “Roe must be overruled… it is time to… return the issue of abortion to the people’s elected representatives”. Justice Alito similarly repudiates a 1992 decision based on Roe v. Wade: Planned Parenthood v. Casey, in his majority opinion, which is said to be joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. As of now, it is reported that the three Democratic-appointed justices: Stephen Breyer, Sonia Sotomayor, and Elena Kagan are working on multiple dissents, while Chief Justice John Roberts’s vote is still unclear. It is important to note that the draft decision is by no means final. Typically, the draft opinion is sent around to the other justices, and they have time to agree, disagree, or suggest changes to the draft before it is released. Some still have hope that Roberts will persuade the court to have a partial strike down of Roe V. Wade rather than a complete overturn.
This leaked opinion is important for three primary reasons. Firstly, this is the only time in modern history that the Supreme Court’s draft decision has been released to the public while the case was still pending - a fact which is only compounded by how controversial and polarizing abortion rights and Roe v. Wade is in American public discourse.
Secondly, this draft decision is indicative of an increasingly rightward bias in the Supreme Court: in 1973, Roe v. Wade was decided 7-2, with five Republican Justices joining two Democratic Justices in the majority opinion. However, today, notably ⅗ of the Justices who are confirmed to agree with Justice Alito’s majority opinion - Justices Gorsuch, Kavanaugh, and Barrett - were appointed by former President Donald J. Trump, who, as a part of his campaign platform, promised to specifically appoint judges who would permanently overturn Roe v. Wade. This shift towards conservatism in the Supreme Court from the 1970s to 2022, proves the increasing polarization of politics in the United States, and subsequently indicates how interpretations of liberty are shifting.
This leads into the third reason why this leaked draft is so imperative: it is hardly shocking. This draft opinion follows a surge of conservative bills that have recently been enacted by state Governors: Idaho and Oklahoma released copycat abortion bans in March and April 2022, modeled after Texas’s S.B. 8 “Heartbeat Bill”, and at the end of March, Governor Ron DeSantis of Florida signed the “Don’t Say Gay” bill into law. All of these laws demonstrate a shift in American politics: increasingly, laws are being drafted and enacted based on a political group’s conception of what morality means.
These bills seem to be more radically conservative than what the American public believes. According to a Gallup poll conducted in June 2021, a record high of 70% of Americans support same-sex marriage, and according to a November 2021 Quinnipiac University poll, 63% of Americans agree with the Supreme Courts 1973 ruling in Roe v. Wade, and 58% of respondents want the decision to be upheld. Still, despite the fact that a majority of Americans support Roe v. Wade, Justice Alito’s draft opinion becoming law would return the power of legalizing abortion to the states: meaning that as many as 30 states can and will immediately restrict or completely ban abortion, leaving only a few Democratic states as strongholds for women’s liberty as expressed in Roe v. Wade.
As the Executive Director of the ACLU, Anthony Romero, California Governor Gavin Newsom, Senator Bernie Sanders (D-VA), and countless women and allies online come out against the draft opinion, including the leaders of the Democratic party - Senate Majority Leader Chuck Schumer (D-NY) and Speaker of the House Nancy Pelosi (D-CA) - who labeled the Court's potential decision as an “abomination, one of the worst and most damaging decisions in modern history”, it is hard to imagine that this leaked draft does not mark a turning point in the modern debate surrounding civil rights and liberties in America.
In the coming weeks - if enacted, Justice Alito’s opinion is suspected to become law in June 2022 - and months leading up to the 2022 Midterm Elections, abortion is not the only topic that will be fiercely debated. In addition to a continued heated discussion on women’s reproductive bodily autonomy, America can also expect renewed debate on the validity of lifelong appointments for Supreme Court Justices and fiercer polarization and radicalization between conservatives and liberals as the country comes to terms with the fact that after 49 years of semi-protected liberty, 5 individuals may have the ability to change hundreds of millions of women’s lives, forever.
This article was written by Editor Sophia Wagner and has contributions by Co-Editor-In-Chief Adam Shamsi.
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