Understanding the possible overturning of Roe v. Wade

Initial draft leak sparks heated debate regarding abortion

JENNY HAN / ASST. NEWS EDITOR / THE USD VISTA

An article published by Politico titled, “Supreme Court has voted to overturn abortion rights, draft opinion shows,” added more tension to the legality of abortion. Published on May 2, the piece showed a leaked draft majority opinion written by Justice Samuel Alito that highlighted the 1973 landmark Supreme Court case Roe v. Wade which legalized abortion on a federal level. 

This is the first time in history that a drafted opinion was leaked to the public. It was officially confirmed by President Joe Biden on May 3 that the leaked majority opinion was legitimate. In a statement before the majority opinion was validated, President Biden condemned the Supreme Court’s decision. In an official statement delivered in the Briefing Room on May 3, President Biden said, “If the Court does overturn Roe, it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose. And it will fall on voters to elect pro-choice officials this November.”

This 1973 court case originated from two attorneys Sarah Weddington and Linda Coffee, filing a lawsuit against Henry Wade (a local district attorney in Texas) on behalf of Norma McCorvey (who went by Jane Roe). Roe wanted an abortion but was unable to do so due to a Texas law stating that abortions were illegal except when necessary to save the mother’s life. Weddington and Coffee argued that Texas’ abortion laws were unconstitutional and won the original case at the U.S. District Court for the Northern District of Texas. However, Wade then appealed directly to the U.S. Supreme Court which ruled in favor of Roe. 

Originally, Roe v. Wade’s constitutionality was justified from the Due Process Clause of the Fourteenth Amendment which states “nor shall any State deprive any person of life, liberty, or property, without due process of law.” In other words, the Due Process Clause ensures that the federal or state government does not take away someone’s life, their liberty, or their property without a proper trial. How “life, liberty or property” is interpreted is up to the Justices. 

According to an Associate Dean of Faculty and Professor of Law Mila Sohoni, the 14th Amendment ensures that all of the rights protected by the Bill of Rights on a federal level also apply on a state level as well.

“What that means is that California can make no law abridging freedom of speech under the First Amendment of the Constitution, even though the First Amendment only speaks to Congress,” Sohoni said. 

Sohoni also stated that the Due Process Clause was commonly used during the 20th century to protect rights that weren’t explicitly covered in the Bill of Rights. However, what is being debated is if abortion should be considered to be one of the rights implictly protected by the Constitution. 

The 1973 majority opinion argued that abortion is one of the rights that should be protected under the Due Process Clause. Justice Harry Blackmun argued that privacy is one of the liberties protected by the amendment. More specifically, he argued that the choice pregnant women make in regards to their pregnancy falls within that right of privacy. As a result, Justice Blackmun states that legally persecuting someone trying to get an abortion “without regard to pregnancy stage, and without recognition of the other interests involved” is a violation of that privacy and her liberty. 

However, the 2022 draft majority opinion states otherwise. Justice Alito wrote, “That provision [the Due Process Clause] has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty (freedoms that are limited to ensure order in society).’” 

Professor Sohoni clarified that Justice Alito brought up these two clauses to create guidelines for which rights, not explicitly mentioned in the Bill of Rights, should be protected by the Constitution. 

“What Justice Alito was saying was that if you look back at what rights were traditionally protected in this country, especially around the time that they enacted the 14th Amendment, the right to have an abortion was not one of those rights,” Sohoni stated. “In fact, the access to abortion was heavily regulated and/or criminalized in lots of places. So, what Alito is saying is that [abortion] can’t be a right that is deeply rooted in our country’s history and traditions. It was not recognized to be your right at all, either at the time the original Constitution was enacted or at the time that the 14th Amendment was promulgated.”

The draft majority opinion doesn’t aim to criminalize abortion. Rather, Justice Alito wrote that, “It is time to heed the Constitution and return the issue of abortion to the peoples’ elected representatives.” According to the NY Times, this would likely result in a situation where, “33.6 million reproductive-age women live in states at risk of losing access to abortion,” more than half of the women from ages 15 to 44 in the US. In contrast, CA Governor Gavin Newsom tweeted “We are proposing an amendment to enshrine the right to choose in the California constitution. We can’t trust SCOTUS to protect the right to abortion, so we’ll do it ourselves. Women will remain protected here.”

In the draft, Justice Alito also stated that “to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” 

Earlier in the draft majority opinion, Justice Alito noted that the Supreme Court enacted several landmark cases to overrule former precedent and that overturning those court cases now would result in the U.S. becoming a different country. 

However, many are skeptical. On May 3, President Biden stated in an interview, “If it becomes a law [the overturning of Roe v. Wade] and if what is written is what remains, it goes far beyond the concern of whether or not there is the right to choose. It goes to other basic rights: the right to marry, the right to determine a whole range of things. Because one of the issues that this Court — many of the members of the Court — a number of the members of the Court have not acknowledged is that there is a right to privacy in our Constitution.” Some of the landmark cases Biden is referencing are Griswold v. Connecticut (the right to use contraceptives), Obergefell v. Hodges (legalizing same-sex marriage), Loving v. Virgina (legalizing interracial marriage) and Lawrence v. Texas (legalizing sodomy and same-sex intercourse). This is because the court cases that President Biden mentioned are also justified using the Due Process Clause of the 14th Amendment.

Professor Sohoni also explained that if Roe v. Wade is overturned, it could possibly undermine the results of other landmark Supreme Court Cases as well. 

“Those [the court cases mentioned earlier]  are rights that have been held to be protected by the 14th amendment’s Due Process Clause, but they’re not listed out in the Bill of Rights,” Sohoni said. “And they have not historically been shielded by laws and traditions either. So if you take the reasoning of the [majority opinion draft] to its logical conclusion, those other precedents would also be vulnerable.”

There is a clear divide in public opinion regarding the possible overturning of Roe v. Wade. Some students, such as USD sophomore Alyssa Jackson, are in favor of this possible ruling. 

“Roe v. Wade has allowed the deaths of over 60 million plus children,” Jackson said. “As a pro-life woman myself, I believe that women deserve so much better than abortion. Women are told that they are not able to both raise a child and have a career, but I believe that they are strong enough to have both. There are also countless pregnancy centers that are ready and able to support women who find themselves in crisis pregnancies, so women will not be alone in a post-Roe America. Millions of innocent lives will be saved with this decision.”

However, others such as USD senior Ellie Stainbrook are disheartened by this possible decision. 

“It is frustrating, as a woman and as a person, to be so ignored and misrepresented by governing bodies that have no other interest than social control and personal, inequitable gain,” Stainbrook said. “The blatant and willful oppression of bodies is an egregious affront to humanity and emphasizes both the divisiveness of conservative ignorance and the insidiousness of reactionary rhetoric. Abortions are healthcare. Healthcare is a human right. Abortions save lives.”

Stainbrook also stated that banning abortions will not have the intended effect others may want. 

“Making abortion illegal does not prevent abortion, it only prevents safe abortions,” Stainbrook said. “At the end of the day, being pro-choice is not being pro-abortion. You don’t have to like abortion; it can be something that is deeply sad and really damaging. Despite this though, it is of utmost importance to allow people the dignity to choose what happens to their body.”

According to Politico, the content of the draft and the vote for controversial court cases are subject to change.

The published version of the leaked document with the final opinion of the Supreme Court regarding the future of Roe is likely to be released in two months.