The next steps in the fight over abortion rights, explained.
On Monday, a new report appeared to confirm that a seismic shift is coming in American society: The Supreme Court intends to overrule Roe v. Wade, the landmark 1973 decision establishing a constitutional right to an abortion, according to a leaked draft opinion obtained by Politico.
“We hold that Roe and Casey must be overruled,” Justice Samuel Alito writes in the draft opinion in Dobbs v. Jackson Women’s Health Organization.
But that is not finalized. The contents of the draft opinion and the number of justices who support it — there were five in favor of it in the initial vote — could still change. The opinion will not go into effect unless or until the Supreme Court actually publishes it in the next few months. In the meantime, the leaked draft is heightening electoral battles and prompting questions about what actions states and Congress can take.
If it holds, the ruling would put decisions about abortion access back in the hands of the states and reverse a half-century of jurisprudence.
Already, lawmakers at the state and federal levels have been scrambling to respond to the court’s anticipated decision, which will result in fragmented abortion access across the country. In 18 states, there are trigger laws or preexisting bans which would bar all or nearly all abortions soon after the decision comes down. In other places, abortion access isn’t poised to change.
That’s all contributing to uncertainty about what happens next. Here’s what to expect from the court, from the states, and from Democrats and Republicans.
What happens next with the Supreme Court and the case?
Tuesday morning, the Supreme Court released a statement confirming that Alito’s draft opinion is, in fact, authentic. But the Court also cautioned that this draft may not necessarily reflect the final result in Dobbs.
Alito’s opinion, according to the Court’s statement, “does not represent a decision by the Court or the final position of any member on the issues in the case.”
Realistically, however, it is very likely that there will be five votes on this Supreme Court for the maximalist assault on Roe that Alito proposed in his draft opinion. The Court’s five most conservative members appeared quite eager to overrule Roe when Dobbs was argued last December. And the Court already permitted states to ban abortions after the sixth week of pregnancy in a decision handed down last winter, so long as those states use a needlessly complicated mechanism to enforce the ban.
So, while it is still possible that Alito will lose his five-justice majority, it’s a bad idea to bet the farm that Roe will still be good law by the end of June, when the Court traditionally hands down the last opinions of its annual term.
As part of the Court’s statement on the leaked opinion, Chief Justice John Roberts described the leak as a “singular and egregious breach” of the Court’s norms of confidentiality, and he also revealed that he has “directed the Marshal of the Court to launch an investigation into the source of the leak.”
It is difficult to exaggerate how much this leak could disrupt the Court’s internal operations, at least in the short term. On Monday night, the Supreme Court news site SCOTUSblog was dragged a bit on Twitter for describing the leak — and not, say, the fact that the Supreme Court appears poised to dismantle one of the firmaments of US civil rights law — as “the gravest, most unforgivable sin.”
But SCOTUSblog is likely correct about how this leak will be perceived within the Court. The justices simply cannot handle the sheer volume of their workload without a team of law clerks trusted to keep the Court’s secrets. And this leak is likely to foster mistrust between justices and clerks that will make it difficult for the Court to function efficiently, at least in the near future.
Will that mistrust lead any justice to flip their vote in Dobbs? Almost certainly not. But it could slow the Court’s ability to swiftly change the law in the future.
What happens to pregnant people if Roe is struck down?
In short, abortion rights will contract rapidly.
At least 18 states have total or near-total abortion bans on the books right now. The details of these laws vary. Some of these laws contain narrow exceptions to protect individuals who need an abortion to save their life or to avoid a permanent disability, but, for example, not all contain exceptions for non-life-threatening medical conditions. And while some take effect right away once Roe is struck down, others will take days or weeks to go into effect. But by the end of the summer, nearly all abortions will be illegal in around 18 states.
Four other states have laws banning abortion after the sixth week of pregnancy, before many people are even aware that they are pregnant.
Criminalizing abortion historically hasn’t stopped people from seeking one. Research from the pro-reproductive rights group the Guttmacher Institute indicates no statistically significant difference in rates of abortion between countries that do and do not broadly allow the procedure. But accessing an abortion safely and legally will become more complicated and risky for people in nearly half the states in the US if Roe is overturned.
Republicans celebrate, cautiously brace for political impact, and plot their next moves
Republicans have been cautious to claim victory based on the opinion’s draft status, but have celebrated the prospect of the Supreme Court overturning Roe.
“If this report is true, this is nothing short of a massive victory for life and will save the lives of millions of innocent babies,” Texas Sen. Ted Cruz tweeted on Monday.
They’ve been more straightforward in expressing outrage at the unprecedented leak of a draft opinion, which they see as an attempt to put public pressure on the justices to switch their votes or soften the final opinion. It’s not yet clear who was the source of the breach, but the GOP has been quick to blame the left. Some Republicans have been calling for the leaker to be held to account, professionally and even criminally.
“This lawless action should be investigated and punished to the fullest extent possible, the fullest extent possible,” Senate Minority Leader Mitch McConnell said during a floor speech on Tuesday. “I’m certain the chief justice will seek to get to the bottom of this. If a crime was committed, the Department of Justice must pursue it completely.”
Republican denouncements of the leak might be an attempt to divert attention from the material consequences of the decision, which many of them recognize might not play in their favor heading into the midterms. While GOP candidates could now tout their party’s ability to deliver on their long-running campaign promises on abortion, it’s equally plausible the decision will energize Democratic voters. That might not be enough for Democrats to overcome other factors that point to a devastating election year for them, including inflation and an unpopular Democratic president, but it’s something GOP strategists are keeping an eye on.
“I definitely think it’s a jolt for the Democrats and that it’s not really a jolt for Republicans. Republicans are already fired up and ready to show up to vote. So I don’t think it helps Republicans at all,” said Jay Williams, a Georgia-based GOP strategist.
About half of Americans consider themselves to be pro-abortion rights, and Republicans don’t want to risk alienating them in a general election, Williams said.
“In a general election, you don’t run on [abortion.] In primaries, I don’t know that it’s going to make that much of an impact. So I don’t think it will change their strategy right now,” he said.
But Republicans are gearing up for the next front in the anti-abortion movement. The Washington Post reported earlier this week that Republicans are already talking about putting in place a nationwide ban after six weeks of pregnancy. Texas, Oklahoma, and Idaho have already enacted their own versions of “heartbeat” legislation that allows private individuals to sue anyone who performs or aids in an abortion after fetal cardiac activity is first detected, typically around six weeks of pregnancy.
Democrats are running up against limitations in Congress
Because of the filibuster — and disagreement within their own caucus — Democrats are pretty limited when it comes to responding legislatively at the federal level.
While Democrats currently control both chambers of Congress, and the House passed the Women’s Health Protection Act last year, it is stalled in the 50-50 Senate.
Due to the legislative filibuster, most bills need 60 votes to pass, meaning Democrats would have to get their entire caucus on board and 10 Republicans to join them. That’s not going to happen.
Another option would be to overturn the filibuster. They’d need all 50 members on board to eliminate the filibuster on any bill, backing they don’t currently have for any issue. It’s an even longer shot with abortion rights, seeing as Democrats aren’t even unified on legislation codifying Roe.
In the past, Sens. Joe Manchin (D-WV) and Bob Casey (D-PA) have been opposed to abortion rights legislation. Casey has notably voted to consider debate on an abortion rights bill, but he has not indicated if he’d support the legislation itself, while Manchin voted against such legislation this past March. (In the spring, a procedural vote on the Women’s Health Protection Act — which would enshrine the right to perform and access an abortion into federal law — failed 46-48 in the Senate, with all Republicans and Manchin voting against proceeding and several lawmakers absent.)
In light of the Politico report, Senate Majority Leader Chuck Schumer announced that he intends to hold another vote on codifying Roe, though it will likely fail much like the previous vote.
Theoretically, there’s a third option: Get a couple of pro-abortion rights Republican senators to join with 48 or 49 Democratic senators to overturn the filibuster to then pass a law codifying Roe. Two Republicans — Sens. Susan Collins (R-ME) and Lisa Murkowski (R-AK) — are both pro-abortion rights, but they voted against the WHPA because they felt it was too expansive. Neither has signaled that they’d be willing to eliminate the filibuster to pass legislation codifying Roe.
“Unless you do something about the filibuster that I have long supported eliminating, we would not have the votes to … enshrine the protections of Roe v. Wade into law,” Sen. Amy Klobuchar (D-MN) said in a CBS News interview. “Most likely this will end up at the ballot box.”
Biden, meanwhile, has some narrow avenues to improve abortion access via executive action, according to a report by the 19th. While he couldn’t protect abortion rights wholesale, he could take actions that increase access to medication abortions and potentially enable providers to set up clinics on federal land in states where there are restrictions.
“We have outlined more aggressive strategies,” says University of Pittsburgh law professor Greer Donley, the co-author of a New York Times op-ed about executive actions. “The question is whether the Biden administration is going to, after Roe is overturned, be willing to do them.”
Those, however, would still be limited. If the Supreme Court chooses to overturn Roe — and between the justices’ remarks at oral arguments for Dobbs in December and the leaked draft opinion, that’s looking like the most probable outcome — the right to access an abortion will no longer be a right for many.
At least in the short term, it will be up to the states to decide.
Author: Ian Millhiser
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