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Leaked Supreme Court Ruling Signals Possible Cascade of Abortion Restrictions

The U.S. Supreme Court is seen early Tuesday, May 3, 2022 in Washington.
The U.S. Supreme Court is seen early Tuesday, May 3, 2022 in Washington.

If the conservative majority on the U.S. Supreme Court overturns federal abortion protections, as a draft decision leaked on Monday night suggests, access to abortion in at least half of the U.S. states is likely to be sharply curtailed — in some cases, immediately — by so-called trigger laws that automatically go into effect in the event of such a decision.

Thirteen states have trigger laws that ban nearly all abortions if they go into effect. Nine more states have laws on the books that were invalidated by the Supreme Court's 1973 decision in the landmark Roe v. Wade abortion rights case, but can be enforced if Roe is overturned.

A number of states have some combination of trigger laws, old anti-abortion laws still on the books, and anti-abortion laws passed in the wake of the Roe decision despite being in clear conflict with the Supreme Court's ruling.

The Guttmacher Institute, a reproductive rights research organization, estimates that 26 states are likely to significantly restrict abortion if the Supreme Court overturns Roe. The Center for Reproductive Rights, a group that supports access to abortions, estimates the number to be 25.

Draft opinion leaked

Late Monday, the news organization Politico released a leaked draft of a decision by the high court. Written by Associate Justice Samuel Alito, one of the court's most conservative members, it explicitly overturns two previous court rulings, Roe v. Wade and Planned Parenthood v. Casey, which are the basis of the federal protection of abortion rights.

"We hold that Roe and Casey must be overruled," Alito wrote. "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 case in question, Dobbs v. Jackson Women's Health, is a challenge to a Mississippi law that bans abortion after 15 weeks of pregnancy, but Alito's draft ruling reaches beyond the specific questions raised by the Dobbs case to overturn 50 years of judicial precedent.

The draft decision was leaked on the same day The Washington Post reported that Republicans in Congress are uniting behind a plan to pass a bill that would ban abortions after fetal cardiac activity can be detected. That would set the ban around six weeks, a stage at which many women do not yet know they are pregnant. Any such bill would face a difficult road in the Senate, as Democrats are certain to use the filibuster to prevent it from passing.

Abortion rights groups react

In their public reaction to the news, some abortion rights organizations chose to stress that the opinion is only a draft and may not express the court's final decision.

"We don't know if the document as reported by Politico is legitimate, and we don't know if it represents the views of a majority of the Supreme Court," said Nancy Northup, president and CEO of the Center for Reproductive Rights, in a statement. "What we do know is that if the Supreme Court overturns Roe v. Wade it will be an unjustified, unprecedented stripping away of a guaranteed right that has been in place for nearly five decades. It would represent the most damaging setback to the rights of women in the history of our country."

Others seemed more prepared to assume that the draft reflects the likely outcome of the case.

"This leaked opinion is horrifying and unprecedented, and it confirms our worst fears: that the Supreme Court is prepared to end the constitutional right to abortion by overturning Roe v. Wade," said Alexis McGill Johnson, president and CEO of the Planned Parenthood Federation of America, in a statement.

"While we have seen the writing on the wall for decades, it is no less devastating, and comes just as anti-abortion rights groups unveil their ultimate plan to ban abortion nationwide."

Abortion opponents react

Groups in favor of more restrictions on abortion, or of outlawing the procedure altogether, were pleased with the direction of the draft ruling.

In a post on its website, Texas Right to Life, a group that last year spearheaded a law that effectively banned abortion after the sixth week of pregnancy in Texas, called the opinion "a clear, bold, categorical rejection of Roe."

"The atrocity of Roe v. Wade stained the moral fabric of our country for nearly 50 years. Today's encouraging news indicates that Roe soon may be gone. Yet, new attacks on Life will emerge," the group added.

"If the draft opinion made public tonight is the final opinion of the court, we wholeheartedly applaud the decision," said Marjorie Dannenfelser, president of the anti-abortion group Susan B. Anthony List, in a statement. "The American people have the right to act through their elected officials to debate and enact laws that protect unborn children and honor women. If Roe is indeed overturned, our job will be to build consensus for the strongest protections possible for unborn children and women in every legislature."

Patchwork of laws

By overturning the rulings in Roe and Casey, the Supreme Court would effectively make the federal government silent on the issue of abortion, leaving it up to individual states to determine the legality of the process.

The attitude of states toward abortion broadly mirrors their political leanings, with states supporting the Republican Party more likely to have bans in place, and states supporting the Democratic Party more likely to allow broad access to abortion.

During his term in office, President Donald Trump promised that he would appoint Supreme Court justices who would overturn Roe. Although none of his nominees — Associate Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — explicitly said that they would vote to overturn the ruling, their appointments to the court set off a flurry of legislation in the states.

Last year, more than 100 pieces of legislation restricting abortion access were passed in various states, some plainly in conflict with Roe.

At the same time, many states with Democratic-run legislatures passed laws codifying the right to an abortion.

If the draft ruling is finalized by the Supreme Court, the likely result is that in the U.S., women's access to abortion will be highly dependent on where they live. In the Northeast and on the West Coast, women will have relatively easy access to care, with abortion providers in multiple locations in every state.

However, in the Deep South and parts of the Midwest and Mountain West, women could be forced to travel hundreds of miles to get access to an abortion provider. According to the Guttmacher Institute, a woman in Louisiana would face a one-way drive of 1,071 kilometers (666 miles) to reach the nearest legal abortion clinic. In Florida, the average drive would be 925 kilometers (575 miles), and in Montana, it would be 617 kilometers (384 miles).