CLEVELAND — An unprecedented leak of a draft of what could be a majority opinion from the Supreme Court has put the issue of abortion in the national spotlight.
The draft, by Justice Samuel Alito Jr. and circulated in February, comes as a perceived step in the right direction for some groups, while others see the indication of a possible decision as a threat to rights.
In December, the Supreme Court heard oral arguments in Dobbs v. Jackson Women’s Health Organization, a constitutional challenge to a Mississippi law prohibiting abortions after 15 weeks.
“That state law is contrary to prior Supreme Court decisions, in particular Roe v. Wade and a case called Casey, which said that states cannot adopt abortion restrictions that are that stringent,” said Jonathan Adler, Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. “So this case is asking the Supreme Court to revisit the Roe and Casey decisions and to reconsider the extent to which the Constitution prohibits state laws restricting or limiting abortion.”
Adler said after the Supreme Court hears a case, the justices will meet to take an initial vote on the outcomes of the case. Then, a draft opinion is written. That draft is what was leaked to the public, ahead of any official ruling on the case.
“Based on what was leaked, what we gather from that is that there was a five justice majority in favor of overturning Roe and upholding the Mississippi law prohibiting abortion after 15 weeks,” Adler said.
Adler emphasized that this draft is just that – a draft. However, if Roe v. Wade were to be overturned, that would mean issues surrounding abortion would go to the state level, rather than federal.
“If the Supreme Court does overturn Roe, it certainly will be one of the most significant Supreme Court decisions of the 21st century,” he said. “It certainly will have broad political ramifications, and certainly it will change the politics of the issue.”
This kind of leak is also unprecedented in the Supreme Court, and Adler said could disrupt the trust justices have amongst one another to be able to have discussions surrounding cases before decisions are made.
Peter Range, executive director of Ohio Right to Life, called the news of the potential overturn of Roe v. Wade historic, and said it would be a monumental decision in protecting unborn children.
“We want to create a culture of life where every human person has fundamental rights,” Range said. “And so if we want to talk about the human person’s right to bodily autonomy, the right to education or to healthcare or to housing, you can’t have any of those rights unless you first and foremost have the right to life.”
Range said that over the years, the pro-life movement has been passing laws at the state level to protect unborn children. He said if Roe falls, there’s an opportunity for every life from conception to be protected.
“If Roe does fall, this enables individual states to recognize the humanity of the preborn,” Range said. “We know from the very moment of conception that’s a unique, new human being that the world has never seen before, and being human, it has human rights, including, foundationally, the right to life.”
Advocates for abortion rights and care said the potential to overturn Roe v. Wade does not come as a surprise. Nevertheless, Maggie Scotece, interim executive director at WHO Abortion Fund and an attorney, said the information revealed in the leak still broke her heart.
“The control over our bodies whether we are men, women, gender non-conforming folks, is extremely important. The decision when, if and how to have a family is one of the most basic decisions we can make about our life and our future,” said Scotece. “And also there’s a dignity in just getting to have decisions about what goes on in your body and whether or not you want to remain pregnant. And we plan on staying here and helping folks access those decisions for as long as we can.”
Women Have Options helps Ohioans and those coming into Ohio access abortion care by assisting them with funding and creating connections for them. Scotece said now, they are hiring even more people, anticipating a rush for help and resources.
Scotece said if Roe v. Wade is overturned, she fears other rights, like those related to privacy, like same sex marriage or access to birth control are “on the chopping block.”
“Access to abortion care shouldn’t be up to the majority rule, it is healthcare at the end of the day, and it is one of our most basic rights,” she said.
Aileen Day, director of communications for Planned Parenthood Advocates of Ohio said that the fact that this is the first leaked draft of a Supreme Court decision as it’s pending shows how “unpopular” this potential decision to overturn Roe v. Wade is.
“I’m constantly thinking about what all this energy we spend working on fighting back for our rights, how we could be putting that to so much better use if we already had these rights, and fighting for other things,” Day said.
Adler said the final ruling in this case will likely not be known until June or early July, and said that discussions are typically had between the initial draft and ultimate decision.
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