What the Supreme Court Abortion Leak Means for America


Photo by TNS

Abortion rights advocates and anti-abortion activists demonstrate in front of the Supreme Court. Photo Courtesy Win McNamee/Getty Images/TNS

 A leak of any Supreme Court opinion or dissent before it is supposed to come out is extremely rare, and has almost never happened in the history of our country. So on May 3, 2022 when Politico announced that they had obtained the initial draft opinion written by Justice Alito in relation to the case Whole Woman’s Health v. Jackson, indicating the court would overturn Roe v. Wade, it was not surprising that this set of events shook the nation.

What remains ironic about the situation is that even though there have been “leaks” in the Supreme Court before, never has an actual draft opinion been leaked to the press in the history of the court, let alone with what is undoubtedly one of the most controversial hot button issues. Most ironically however, is perhaps that the original Roe v Wade decision was leaked by a Supreme Court law clerk.

   Across the country the leaked decision in this case was seen in two completely different lights. For those who lean on the Conservative side of the abortion debate, this was a major win after years of fighting. For those who lean on the Liberal side of the debate this was a sad day for the system of justice, and an assault on women’s rights. Women in their view have now been set back 50 years. 


   The longstanding debate over whether a women has a right to have an abortion was decided on January 22, 1973, when the United States Supreme Court held that the the U.S. Constitution protects a pregnant woman’s liberty to choose to have an abortion without excessive government restriction/s. 

   Almost 20 years after the decision in Roe was made, the case Planned Parenthood v. Casey made its way up to the Supreme Court. This case was brought against the then Governor of Pennsylvania, Robert P. Casey in relation to new abortion statutes he \had put forth for the state. 

   Once again the Supreme Court upheld the “essential holding” in Roe, with a few new provisions that the Pennsylvania legislature had wanted added. Regardless, the justices still held in substance that women under the due process clause of the 14th amendment have a fundamental right to privacy which extends to her decision on whether or not to have an abortion before the line of viability. 


   Soon after the majority draft opinion was leaked Supreme Court Justices came out and made statements, noting in substance that an investigation will be launched and noted how appalling this leak was. There have also been notions that this is not a final draft, however regardless of that fact, not much will end up changing from this draft, and it remains highly unlikely that any of the Justices who voted to overrule Roe, would end up changing their view by the time the final draft comes out. The fact that an entire Supreme Court draft opinion was leaked has its own set of repercussions, which have yet to be decided or widely talked about.

   However despite some of the uncertainties that exist, there are many things that can be expected once Roe is officially overturned. First and foremost the decision of whether abortion can remain legal would go to the states. Currently, there are many states like Missouri that have what are called “trigger laws”. These laws are unenforceable at the moment, but that aspect of them is subject to change if  Roe is officially overturned by the court. As an example the state of Missouri has laws in place that once Roe is overturned would make abortion illegal with limited exceptions such as in medical emergencies, however there are no exceptions for instances of rape or incest. It goes without saying that as soon as Roe is overturned there will me a multitude of states that enact some sort of bans, those states include Arkansas, Missouri, Mississippi, and Kentucky to name a few. In total there are around 20 states that have laws that would ban under some circumstances or completely outlaw abortion. Of course there will still be states are are very much likely to leave abortion legal, such as California and New York.

It does still remain clear how the states with complete or partial bans on abortion will enforce their new laws, and the long term impact of this ruling has yet to be seen. In the end what this leak has done, is draw the nation further apart, and create even more division