Explainer: Recent leaked draft opinion overturning Roe v Wade in the United States

On 2 May, a draft majority opinion from the Supreme Court of the United States penned by Justice Samuel Alito was leaked to Politico. Its veracity was subsequently confirmed by Chief Justice Roberts, who ordered an investigation into the source of the leak.

The content of the draft opinion would overturn the United States’ national abortion law, which had its origins in the 1973 Roe v Wade decision and the 1992 Planned Parenthood v Casey decision. Whilst the leaked Supreme Court judgement would not ‘end’ legal abortion in the United States, as some pro-abortion alarmists have claimed, it would return the matter to the legislative autonomy of the individual states.

This has already generated a considerable renewed global debate on abortion. It is important that the pro-life perspective be recognised and listened to internationally on this crucial human rights issue. This explainer provides some brief details on the news from the United States and its ramifications.

Background:

The landmark Supreme Court judgement in Roe v Wade (1973) centred on the constitutional right to privacy. The Supreme Court’s primary function is to interpret the US Constitution, not to assume a legislative role or to be an engine of social change. The leaked draft judgement implicitly recognises that the Court had previously erred and that ‘Roe and Casey must be overruled’ as ‘it is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.’

This prospective ruling would create a scenario not dissimilar to the current constitutional status of abortion in Ireland, whereby the Dáil has the power to decide how to legislate for abortion. An important distinction between Ireland and the United States is that the latter is a federal country. Each of the fifty states holds considerable autonomous power through their state governments. In the United States, there are many states which have consistently returned pro-life representatives at state-wide level, which indicates that should the federal imposition of abortion instituted by Roe v Wade be overturned, these states may adopt a pro-life policy. This would represent a tremendous step forward for the life issue but also for democracy and the principle of subsidiarity.

The leak:

The leak of the full draft opinion, consisting of 98 pages, before an official ruling has been announced is an unprecedented occurrence. The conservative commentator Ben Shapiro speculated the leak may have originated from the staff of a liberal justice.[1] Irrespective of its origins, the leak was reckless and improper. It is now the subject of an investigation.

Media reports of the draft have undoubtedly prompted considerable pro-abortion backlash and a mobilisation of pro-abortion advocates in the US and globally. It has been suggested that Justices supporting this majority draft could become targets of an intimidation campaign from pro-abortion advocates. This is deeply disturbing and plumbs the moral depths.

The make-up of the Supreme Court slimly favours more conservative Justices, who espouse originalism with regards to their efforts to interpret the Constitution as it was originally written with its original intentions. As each individual Justice is different and has complex views on a whole host of legal and social issues, attempting to generate a majority opinion which satisfies each Justice is a difficult task. In other words, it is important to remember that this leaked judgement is simply a draft and there is no guarantee it will ultimately come to pass.

Outcomes:

If the Supreme Court adopts this or a similar judgement which overrules Roe v Wade and restores the autonomy of states to legislate for abortion, it is without doubt the states will adopt vastly different policies on the issue – as would be their prerogative.

Pro-abortion think-tank the Guttmacher Institute have observed that 16 states and the District of Columbia currently have laws which explicitly protect the ‘right’ to abortion, to varying degrees. If Roe v Wade were overturned, these states would likely continue to have an extremely pro-abortion public policy.

In contrast, research by the pro-abortion Planned Parenthood noted that there are 26 states which are ‘certain or likely’ to introduce pro-life laws, to varying degrees. Meanwhile there are nine states which have pre-Roe laws still on their books which protect life, which could be reactivated if the ruling were overturned.

Conclusion:

Pro-life groups in the United States have widely welcomed the indications from the Supreme Court, whilst condemning the leak of the decision.

Marjorie Dannenfelser, President of the pro-life Susan B. Anthony List, said:

“The American people have the right to act through their elected officials to debate and enact laws that protect unborn children and honour 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”.

“We also recognize the need for the pro-life movement to continue its existing work to support pregnant women and children in need. There are thousands of pro-life pregnancy centers and maternity homes nationwide and an ever-growing pro-life safety net. The pro-life movement will continue to grow to meet the needs of these women and their families, walking and planning with them to love and serve both mother and child”, she said.

In Ireland, the Pro Life Campaign has welcomed the indications contained in the draft as a step in the right direction for the protection of human life globally. It is hoped this decision will be implemented and spark a global re-evaluation of abortion policy which leads to greater efforts to protect the right to life of unborn children.

[1] https://www.dailywire.com/news/shapiro-draft-supreme-court-majority-opinion-leaks-striking-down-roe-v-wade-heres-what-all-of-that-means