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Roe v. Wade leaked opinion: What is Roe and what does it mean if it is overturned?

The U.S. Supreme Court appears set to vote to overturn Roe v. Wade, the 1973 landmark decision that guaranteed American women the right to abortion, according to a leaked draft opinion posted Monday night by Politico.

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According to the story, the court voted in February to overturn the nearly 50-year-old law because “Roe was egregiously wrong from the start,” conservative Justice Samuel Alito wrote in the draft opinion which is dated Feb. 10.

Based on the leaked draft report, the court would find that the Roe v. Wade decision that allowed abortions to be performed before a fetus would be viable outside the womb was wrongly decided. The decision to overturn the case would be based in part on the fact that the U.S. Constitution, the opinion reads, makes no specific mention of abortion rights.

“Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each state from regulating or prohibiting abortion,” Alito wrote, according to the leaked document.

If the document published by Politico is legitimate and the court sticks to the decision laid out in the draft, what happens next?

Here is what we know so far:

What does Roe v. Wade say?

In Roe v. Wade, the Supreme Court ruled that a Texas state law that banned abortions was unconstitutional.

The decision involved the case of Norma McCorvey, called “Jane Roe” in the court documents. McCorvey sought an abortion in 1969, but abortion was illegal in Texas then unless it was necessary to save the mother’s life.

She filed suit against the district attorney, Henry Wade, saying Texas’ abortion law was unconstitutional. She won the case, but Texas appealed the decision to the U.S. Supreme Court.

The court ruled that under the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution, there was a fundamental “right to privacy” that allows pregnant women to choose whether to have an abortion.

The court also ruled that the right to choose an abortion is not absolute and must be balanced against the government’s interest in protecting women’s health and prenatal life.

The Court tied state regulation of abortion to the three trimesters of pregnancy:

  • In the first trimester of pregnancy, the state may not regulate the decision to have an abortion.
  • In the second trimester, the state may impose regulations on abortion that are reasonably related to maternal health.
  • In the third trimester, once the fetus reaches the point of “viability,” a state may regulate abortions or prohibit them entirely, so long as the laws contain exceptions for cases when abortion is necessary to save the life or health of the mother.

What case is the court ruling on that would overturn Roe?

The leaked draft opinion concerns a case called Dobbs v. Jackson Women’s Health Organization.

In 2018, Mississippi passed a “Gestational Age Act,” which prohibits almost all abortions after 15 weeks. Jackson Women’s Health Organization, the only licensed abortion facility in Mississippi, and one of its doctors filed a lawsuit in federal district court challenging the law.

Eventually, a district court ruled for Jackson Women’s Health, stopping Mississippi from enforcing the gestational age law. The state appealed the ruling to the U.S. Supreme Court.

The document published by Politico was labeled a “1st Draft” of the “Opinion of the Court” in Dobbs v. Jackson Women’s Health Organization.

What is a draft opinion?

A draft opinion from the Supreme Court is a first take on a ruling in a case.

Justices hear oral arguments and then have an initial vote on the case. After an initial vote, one justice is assigned to write the majority opinion and creates a draft that lays out the reasons for the decision. The draft is circulated among the other justices for consideration.

The draft is a reflection of an initial vote. Those votes can change. Language in the draft can change. A court ruling is final only when it is published by the court.

Are draft opinions often leaked?

Reuters reported that Neal Katyal, a lawyer who regularly argues before the court, said if the report was accurate, it would be “the first major leak from the Supreme Court ever.”

What did this draft opinion say?

The draft opinion basically says the Constitution does not guarantee a right to abortion services. It goes on to say that individual states would be allowed to more heavily regulate or even ban abortions.

“We hold that Roe and Casey must be overruled,” it states, referencing the 1992 case of Planned Parenthood of Southeastern Pennsylvania v. Casey, which affirmed Roe’s finding of a constitutional right to abortion services but allowed states to place some restrictions on the practice.

According to the draft opinion published by Politico, when the justices met in private Dec. 1, shortly after arguments in the Dobbs v. Jackson Women’s Health Organization case, at least five of them voted to overturn Roe and Casey.

Politico reported that the five justices who voted initially to overturn Roe are Justices Alito, Amy Coney Barrett, Neil Gorsuch, Clarence Thomas and Brett Kavanaugh.

What happens next if Roe v. Wade is overturned?

If Roe v. Wade is overturned, abortion in the United States would not necessarily be illegal. The decision on whether an abortion is legal would revert to the states.

In some states, bans on abortion have remained on the books, but are blocked by the Roe and Casey decisions. Other states have begun to introduce and pass “trigger laws,” or laws that would trigger a ban on abortion should Roe be overturned.

Thirteen states have trigger laws: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, and Wyoming.

Other states have passed laws known as “heartbeat bills,” making abortion illegal if a fetus’ heartbeat can be detected, generally at about six weeks.

When is the ruling expected?

The court is expected to rule on the case before its term ends in late June or early July.

When would it take effect?

If Roe v. Wade is overturned, clinics in some states would most likely begin closing within days. In other states, it could take several months.

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