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On Monday evening, Politico dropped a massive leak — Supreme Court decision before the Court had even officially handed it down. According to the leaked draft, which is 98 pages, the majority opinion held that Roe v. Wade “was egregiously wrong from the start,” effectively overturning the landmark decision that legalized abortion around the country.
The Politico report sent the country into rage, rejoice, and confusion. But what does the leaked initial draft say about abortion going forward, and what does it mean if the court follows through with this decision?
Here are five takeaways from the leaked majority opinion in Dobbs v. Jackson Women’s Health Organization:
1. “Roe and Casey Must Be Overruled”
Justice Samuel Alito, the author of the draft, states the decision plainly for all to understand: Roe and Casey were poor decisions and do not hold up under the scrutiny of the Constitution.
Roe v. Wade was the landmark decision in 1973 that struck down Texas state laws criminalizing abortion. Roe determined that the Constitution did not allow states to punish abortion, effectively legalizing the practice nationwide. In a 7-2 decision, the justices used the 14th Amendment to argue that a “woman’s right” to an abortion is protected by her “right to privacy.”
Planned Parenthood v. Casey (1992) was decided nearly 20 years after the Roe decision came down, and in a 5-4 decision, the justices reaffirmed Roe and also set a standard in place to determine if a state set certain requirements on women wanting an abortion. They called the standard the “undue burden,” explaining it as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”
In the leaked majority opinion from Dobbs, Justices Brett Kavanaugh, Amy Coney Barrett, Neil Gorsuch, Clarence Thomas, and Samuel Alito reportedly agree that Roe and Casey have no foundation in Constitutional law.
Alito writes, “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely–the Due Process Clause of the Fourteenth Amendment.”
The draft goes on to say that the Due Process Clause – which guarantees due process of law before the government can take away life, liberty, or property – does not include “some rights that are not mentioned in the Constitution,” including the “right to privacy.”
On this basis, the majority reasons, Roe and Casey cannot stand.
2. The Constitution Requires Abortion To Be Decided by the States
Before Roe, abortion was left up to the states. In 1970, New York legalized the practice, becoming “a magnet for women who wanted to terminate their pregnancies but were barred from doing so where they lived,” as The New York Times put it. Alaska, Hawaii, and Washington also repealed abortion bans between 1967 and 1973. Another 13 states allowed for more abortion exceptions without fully legalizing it.
After the Roe ruling came down, state laws against abortion became impossible to enforce, but some states have continued to push for abortion bans. Those recent actions on abortion are what led to Monday’s leaked decision, which is expected to be handed out by the Court in the coming months.
In 2018, Mississippi passed a law banning abortions after the baby reached 15 weeks gestation. The only licensed abortion agency in the state, Jackson Women’s Health Organization, sued. A district court ruled that Mississippi could not enforce a 15-week abortion ban, arguing that the state did not prove a baby has viability at 15 weeks. A U.S. Appeals Court upheld the decision, and the case came before the U.S. Supreme Court in December.
Mississippi is far from the only state seeking to ban some abortions. Eight states, including Alabama, Georgia, Louisiana, Kentucky, Missouri, Ohio, South Carolina, and Texas have recently passed heartbeat bills, banning abortions after an unborn baby’s heartbeat can be detected. There are also 26 states that would likely ban abortions after Roe is overturned. Abortion would still be legal in most cases in the remaining 24 states.
That is the reality the justices say the Constitution demands. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” Alito wrote.
3. Overturning Precedent
In the Dobbs v Jackson draft opinion, the Court overrules prior precedent set by Roe, and Alito notes that “Some of our most important constitutional decisions have overruled prior precedents.”
He points to the infamous decision in Plessy v. Ferguson, a case that established the “separate but equal” treatment of black Americans. “In Brown v. Board of Education, the Court repudiated the ‘separate but equal’ doctrine, which had allowed States to maintain racially segregated schools and other facilities,” Alito writes. “In doing so, the Court overruled the infamous decision in Plessy v. Ferguson … along with six other Supreme Court precedents that had applied the separate-but-equal rule.”
The majority opinion reminds us that “adherence to precedent is the norm but not an inexorable command.” The precedent set in Roe does not require the Court to uphold the decision, especially when the majority questions its constitutionality.
“Roe … was remarkably loose in its treatment of the constitutional text,” Alito writes. “It held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned.”
Once again, Alito writes with unmistakable clarity. Neither the right to an abortion nor the right to privacy appears anywhere in the Constitution, so federal law cannot stop a state from prohibiting abortion based on the Constitution.
The Court, in the draft, gets back to the originalist interpretation of the Constitution, making it clear that a legal ruling handed down from the Court cannot be made on the basis of cultural activism but only on Constitutional law.
Alito continues: “Roe expressed the ‘feel[ing]’ that the Fourteenth Amendment was the provision that did not work, but its message seemed to be that the abortion right could be found somewhere in the Constitution and that specifying its exact location was not of paramount importance.”
The Dobbs ruling would set a new precedent, changing how abortion will be argued before the Court in the future. The so-called “right to privacy” is not a valid legal argument for the constitutionality of abortion. Abortion supporters who maneuvered their way through arguments in 1973 can no longer rely on their “loose … treatment of the Constitutional text” to argue for a right to abortion.
4. Roe and Casey Have Divided the Country
A point easily lost in the bombshell report is the reason these cases have caused so much panic in the first place. Even some liberals will admit Roe and Casey were poorly reasoned arguments, with little-to-no basis in the Constitution, and were decided more on political motivations than on Constitutional principles. So it should be no surprise that the decisions led to years of division and hostility between political parties, friends, neighbors, and family.
“Roe and Casey have enflamed debate and deepened division,” Alito writes.
But the draft stresses that the latest decision was not affected by current or future political reactions to the issue.
“We cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work,” Alito explains. “We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision.”
The justices might not know exactly how the country will react to this decision, but everyone has a good idea that the overturning of Roe will have just as much, if not more, of a divisive effect as the original decision.
Not only was Roe a landmark decision in terms of judicial precedent, but it was also a decision that set the table for next decades of the culture wars. Just as Roe led to an extreme partisan divide in the past, its reversal will lead to more division.
5. There’s a Racial Disparity to Abortion
Justice Alito ventured into even more controversial territory in his draft opinion, as he writes of the early supporters of abortion who favored eugenics, especially as a way to control the black population.
“Some such supporters have been motivated by a desire to suppress the size of the African American population,” Alito writes. “It is beyond dispute that Roe has had that demographic effect. A highly disproportionate percentage of aborted fetuses are black.”
He is correct in his connection of abortion to racism. In the early 20th Century, some of the most influential abortion advocates, such as Planned Parenthood founder Margaret Sanger, also supported eugenics and had ties to racism. Planned Parenthood even removed Sanger’s name from one of their clinic’s after backlash from people pointing out Sanger’s racism.
Statistical evidence also proves abortion’s disproportionate effect on the black community.
According to a Congressional report from June 2015, black women made up 36% of all women getting abortions while only making up 14% of “the childbearing population.” Since 1973, over 19 million black babies have been aborted, meaning around 30% of all aborted babies were black, even though African-Americans make up only 12% of the U.S. population.
Opponents of abortion have long pointed out this harrowing reality. To have the argument written down in a Supreme Court decision cements its importance in history for all to see.
The views expressed in this piece are the author’s own and do not necessarily represent those of The Daily Wire.