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Current Legal Events: Initial Draft to Overturn Roe V. Wade by Natalie Zadikian

On May 3rd, 2022, an initial draft majority opinion to overturn the landmark Roe v. Wade decision was leaked. This draft is authored by Justice Samuel Alito, and if followed through, it will dissipate the federal right to an abortion and leave states in charge of deciding whether to restrict or ban abortions. This leaked draft came as a shock to the public, especially since the outcome of Roe v. Wade has been responsible for guaranteeing legal abortion access in the U.S since 1973.

Before diving in further, I would like to provide some context and definitions surrounding abortions, reproductive healthcare, and the Roe v. Wade case. The term abortion is used to describe the general termination of a pregnancy. Abortions can occur for different reasons—the most common categories include therapeutic abortions for the health and safety of the woman, and induced abortions for elective reasons. As for the method of termination, there are two options: medication abortions and in-clinic abortions. According to Planned Parenthood, medication abortions utilize both mifepristone and misoprostol, which causes uterine cramping and bleeding in order to empty the uterus—a process that usually takes 24 hours to complete. This option is available for up to ten weeks of pregnancy in most states, and now accounts for more than half of all abortions in the U.S. In-clinic abortions involve a medical procedure where suctioning is used to empty the uterus, and takes about 5 to 10 minutes to complete. Since receiving an abortion is an autonomous decision that can increase people’s psychological, physical, and economic well-being, abortions are considered an essential component to reproductive healthcare.

The landmark Roe v. Wade Supreme Court decision was a historic case that established the constitutional right to an abortion. On January 22, 1973, the Supreme Court ruled in favor of Norma McCorvey—who is more widely known under her legal pseudonym as Jane Roe—in her court case against the District Attorney of Dallas, Texas, Henry Wade. Roe was seeking an abortion in Texas to terminate her pregnancy. However, state law in Texas deemed abortions illegal, with an exception for abortions that serve as life-saving procedures for the woman. Roe decided to sue Wade, claiming the Texas law was unconstitutional because it infringed on her constitutional right to privacy. Although the Supreme Court decided that the right to privacy extends to a woman’s decision to end her pregnancy, this case did not simply legalize abortions on an absolute level. Instead, the Court balanced the states’ interest to protect potential human life with the woman’s right to privacy by outlining each of their rights in accordance with the three trimesters of pregnancy. These rights are as follows:


“(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

(c) For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”


The most significant impact of this decision is guaranteeing the right for women to receive a legal abortion before the end of the second trimester of pregnancy. However, the leaked initial draft to overturn this decision would effectively end the federal right to an abortion. The draft argues that Roe must be overruled because abortion is not referenced in the Constitution, and that even though the Due Process Clause of the Fourteenth Amendment guarantees some rights that are not explicitly stated in the Constitution, those rights must be deeply rooted in the history of the nation—in which they argue that abortion is not. Because of this, the draft declares that each state should be left to decide the legality of abortions. To read the full opinion draft, click here.

According to a Pew Research Center study conducted in 2021, 59% of Americans believe abortion should be legal in all or most cases. If the decision of Roe v. Wade is overturned, the result will directly contradict majority public opinion in the U.S. regarding the right to an abortion. For historically liberal states, such as California, the right to abortions will likely remain in place as state law. But for historically conservative states, such as Texas, overturning Roe v. Wade will trigger a state-wide ban on abortions, essentially forcing women to either carry out their pregnancies to term, travel across state lines for a legal abortion, or seek illegal, unsafe, “back-alley” abortions that often have harmful or fatal consequences for the woman.


Here is a graphic provided by the New York Post that demonstrates how certain states will be impacted if Roe v. Wade is overturned:


Abortion surveillance studies conducted by the CDC show that more than 75% of abortions in the last ten years occured early in gestation, at or before nine weeks of pregnancy. State-wide abortion bans would therefore mostly affect women seeking abortions early on in their pregnancy, before the pregnancy is considered viable. Additionally, Black women will be disproportionately impacted if Roe v. Wade is overturned, since Black women accounted for 38.4% of abortions in the year 2019. Other relevant demographic considerations include the socioeconomic status and age of women who receive abortions. Women in their 20s account for the majority of abortions at 56.9%, and unmarried women account for an overwhelming 85.5% of all abortions. Research published by the Guttmacher Institute shows that abortions have been declining since 2011, even in states with little or no restrictions on abortions. This research suggests that increased contraceptive use is a likely mechanism that has contributed to a recent decrease in unwanted pregnancies, leading to a subsequent decline in abortion rates. If people strive to reduce the amount of abortions that happen every year, providing affordable and accessible contraceptives has proven to be an effective strategy—abortion bans have historically had no significant impact on abortion rates, while simultaneously creating more obstacles for women seeking reproductive care.

The final opinion for overturning Roe v. Wade is expected to be released within the next few months. Some judicial opinions may change before then, but if not, we can expect abortions to become a state issue instead of a federal one. It is important to know how this may impact you and your loved ones—make sure to research your state’s stance and current laws regarding abortion, and make any necessary preparations or changes in order to adapt to this new reality that we may face. Reproductive healthcare is an integral part of everyone’s mental, emotional, and physical health, and we all deserve to make choices that align with our goals, our safety, and our happiness.



References

The abortion pill: Get the facts about medication abortion. Planned Parenthood. (2022). https://www.plannedparenthood.org/learn/abortion/the-abortion-pill

In-clinic abortion procedure: Abortion methods. Planned Parenthood. (2022). https://www.plannedparenthood.org/learn/abortion/in-clinic-abortion-procedures

Roe v. Wade, 410 U.S. 113 (1973).

About six-in-ten Americans say abortion should be legal in all or most cases. Pew Research Center. (2022). https://www.pewresearch.org/fact-tank/2021/05/06/about-six-in-ten-americans-say-abortion-should-be-legal-in-all-or-most-cases/

26 states where abortion will be banned or restricted if Roe v. Wade is overturned. New York Post. (2022). https://nypost.com/2022/05/03/26-states-where-abortion-will-be-illegal-if-roe-v-wade-falls/

Abortion surveillance - United States, 2019. Centers for Disease Control and Prevention. (2021). https://www.cdc.gov/mmwr/volumes/70/ss/ss7009a1.htm#T6_down

New clarity for the U.S. abortion debate: A steep drop in unintended pregnancy is driving recent abortion declines. Guttmacher Institute. (2018). https://www.guttmacher.org/gpr/2016/03/new-clarity-us-abortion-debate-steep-drop-unintended-pregnancy-driving-recent-abortion


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