Potential Overturning of Roe v. Wade By U.S. Supreme Court Spurs Protests and Calls for Action From Democrats
Both pro-choice and anti-abortion activists rallied outside of the U.S. Supreme Court on Monday in Washington after a draft from the court to overturn the 1973 ruling legalizing abortion was leaked. Photo: Kevin Dietsch/Getty Images
The bombshell draft U.S. Supreme Court decision suggesting the court may overturn the 1973 Roe v. Wade ruling legalizing abortion sent Democrats scrambling on Tuesday, with lawmakers and activists looking for some way to head off the sweeping social change.
California Governor Gavin Newsom said, after Politico reported the draft decision, that his state will propose an amendment in it’s constitution to “enshrine the right to choose.”
“We can’t trust SCOTUS to protect the right to abortion, so we’ll do it ourselves,” Newsom said on Twitter, referring to the Supreme Court.
Reuters was not immediately able to confirm the authenticity of the draft opinion. The Supreme Court and the White House declined to comment.
“Do something, Democrats,” abortion-rights protesters chanted as they rallied outside the court in the pre-dawn hours against the decision, which would be a triumph for Republicans who spent decades building the court’s current 6-3 conservative majority.
“If the report is accurate, the Supreme Court is poised to inflict the greatest restriction of rights in the past fifty years — not just on women but on all Americans,” Congress’s top two Democrats — House Speaker Nancy Pelosi and Senate Majority Leader Chuck Schumer — said in a joint statement. “The Republican-appointed Justices’ reported votes to overturn Roe v. Wade would go down as an abomination, one of the worst and most damaging decisions in modern history.”
A bill that would have protected the right to abortion nationally died in Congress early this year as Democrats’ razor-thin majority was not enough to overcome Senate rules requiring a supermajority to agree on most legislation.
In the absence of federal action, states have passed a raft of abortion-related laws. Republican-led states have moved swiftly, with new restrictions passed this year in six states. Three Democratic-led states this year have passed measures intended to protect abortion rights.
Abortion is one of the most divisive issues in U.S. politics and has been for nearly a half century.
A 2021 poll by the Pew Research Center found that 59% of U.S. adults believed it should be legal in all or most cases, while 39% thought it should be illegal in most or all cases.
“Wrong From the Start”
“Roe was egregiously wrong from the start,” conservative Justice Samuel Alito wrote in the draft opinion, which is dated Feb. 10, according to Politico, which posted a copy online.
Based on Alito’s opinion, the court would find that the Roe v. Wade decision that allowed abortions performed before a fetus would be viable outside the womb — between 24 and 28 weeks of pregnancy — was wrongly decided because the U.S. Constitution makes no specific mention of abortion rights.
“Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each state from regulating or prohibiting abortion,” Alito said, according to the leaked document.
The sweeping nature of the decision raised questions among legal experts and court observers about what other rights established by the court could be overturned.
The ruling would be the court’s most sweeping since former President Donald Trump succeeded in naming three justices to the court.
The news broke a little more than six months before midterm elections that will determine if Democrats hold their razor-thin majorities in the U.S. Congress for the next two years of President Joe Biden’s term.
“Congress must pass legislation that codifies Roe v. Wade as the law of the land in this country NOW,” said Senator Bernie Sanders.
Abortion Providers Stunned
The decision appeared based on an oral argument in December on Mississippi’s bid to revive its ban on abortion starting at 15 weeks of pregnancy, a law blocked by lower courts.
The Politico report said a court majority was inclined to uphold Mississippi’s abortion ban and that there could be five votes to overturn Roe. An official ruling is expected before the end of June.
Four of the other Republican-appointed justices — Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — voted with Alito in the conference held among the justices, it added.
After an initial vote among the justices following an oral argument, one is assigned the majority opinion and writes a draft. It is then circulated among the justices.
At times, in between the initial vote and the ruling being released, the vote alignment can change. A ruling is only final when it is published by the court.
The news of the draft opinion stunned abortion providers.
Andrea Gallegos, executive administrator at Tulsa Women’s Clinic in Oklahoma, had just finished calling some 25 patients to tell them their Tuesday abortion appointments would need to be canceled because of a soon to be enacted Oklahoma law modelled on a highly restrictive Texas abortion ban.
“I can’t say that I’m surprised,” she said.
“Now all these other conservative states like Oklahoma are passing the exact same legislation that Texas did, I have to say I became less optimistic and way more scared for what the future of Roe looks like.”
The Roe v. Wade decision recognized the right to personal privacy under the U.S. Constitution protects a woman’s ability to terminate her pregnancy.
Christian conservatives and many Republican officeholders have long sought to overturn it.
If Roe is overturned, abortion is likely to remain legal in liberal states. More than a dozen states have laws protecting abortion rights. Numerous Republican-led states have passed various abortion restrictions in defiance of the Roe precedent in recent years.
The anti-abortion group the Susan B. Anthony List welcomed the news.
“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,” its president, Marjorie Dannenfelser, said in a statement.
(Reporting by Lawrence Hurley, Gabriella Borter and Moira Warburton; Editing by Scott Malone, Michael Perry and Chizu Nomiyama)