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What We Know, and What We Don’t, About the Leaked SCOTUS Roe v. Wade Draft Opinion

On Monday night, an unprecedented Supreme Court leak upended social media and set the country buzzing. A draft of a majority opinion by Justice Samuel Alito leaked to Politico showed that the Court has voted to strike down Roe V Wade. If the decision prevails, it would end the guaranteed federal constitutional protections of abortion rights in the U.S.

Roe was egregiously wrong from the start,” Alito wrote, according to the purportedly leaked draft. “We hold that Roe and Casey must be overruled. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

The leaked draft is not final, and Justices can and do change their votes before publication. But if the vote holds as leaked, it would be a monumental shift, with repercussions that extend far beyond the abortion debate. Here’s what we know, and what we don’t about Dobbs v. Jackson Women’s Health Organization, and what’s next.

Is the leaked draft legit?

Yes. Chief Justice John Roberts confirmed the authenticity of the leak on Tuesday morning. It remains unclear who leaked the draft or for what purpose. Was it leaked by a Roe supporter as a way to stoke public opinion against the impending decision? Or was it leaked by a Roe critic to rally conservatives to support wavering votes?

Either is possible, or some third option. We just don’t know.

So if the draft is legal, what then? 

Just because the leak is confirmed to be real doesn’t mean we know how close the draft is to the actual opinion, which will likely be released within the next two months. Votes change after drafts are released and a lot can happen between the writing of a draft and an actual opinion being handed down. CNN reports that Chief Justice John Roberts — one of the Court’s six conservative Justices — did not vote to overturn Roe. If that’s true, the majority is slim and potentially subject to change.

That said, Alito and Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett have all seemed either explicitly or implicitly supportive of efforts to at least limit abortion in the past. It is not a stretch to imagine the vote falling along these lines now.

If Roe v. Wade is struck down, would abortion be illegal?

It depends on where you live. Very likely, if the draft opinion does become law, abortion would quickly become inaccessible in roughly half of all 50 states that already have near-bans, like the “heartbeat bills” that restrict abortion in all but the earliest stages of a pregnancy. These laws vary by state, with some making exceptions for cases like rape or incest, and others carving out room for women who require an abortion to save their lives or other medical emergencies.

The exact number of states that would swiftly ban or severely limit abortion if the decision prevails varies, but the Center for Reproductive Rights puts it at 24: Alabama, Arizona, Arkansas, Georgia, Idaho, Indiana, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia and Wisconsin.

How would that impact the overall number of abortions in the country?

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A study from Texas found that when the state enacted its “heartbeat bill,” the number of abortions in the state fell by around 50 percent, but many women seeking an abortion went elsewhere to end their pregnancies, meaning the total number of Texas women who obtained an abortion only fell by about ten percent.

If Roe fell, that percentage would likely be higher, since women would have to travel further for an abortion. About one in four women in America get an abortion at some point, and most of them are young, low-income and already parents of at least one child. All of that makes lengthy travel more difficult, which would likely impact the overall number of abortions if Roe were overturned.

Will Democrats fight back?

They’ll try. Democrats have control of the Presidency, the House and the Senate, but the party has been splintered and President Joe Biden has struggled to unite this trifecta into an engine for serious political momentum. On Monday, Senator Bernie Sanders called for legislation that would “codify Roe v. Wade as the law of the land in this country,” while acknowledging they lacked the votes in Senate for such a move. So if Democrats want to codify Roe at the federal level, they’ll have to nuke the filibuster — a move both parties have been wary to make.

So Democrats have options, but few good ones and none that are likely to gain the support of a party already struggling to cooperate.

What does this mean for other landmark decisions? 

It’s a mixed bag. On the one hand, Alito’s writing “draws some fences around the conservative legal project,” as Vox’s Ian Milhiser puts it — firmly taking a few conservative dreams off the table to support the repudiation of Roe.

But Alito’s decision also criticizes Obergefell v. Hodges as not being “deeply rooted in history,” which may signal to some activists that the time is ripe to test this Court’s commitment to the 2015 decision that legalized same-sex marriage. It’d be a long shot, but no longer a shot than overturning Roe once seemed.

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