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A Leaked SCOTUS Draft Spells Out the Death of Roe v. Wade

By James Field | Politics | May 3, 2022 |

By James Field | Politics | May 3, 2022 |


In a highly unusual leak by the United States Supreme Court, a draft majority opinion obtained by Politico details how the Court’s conservative majority will strike down Roe v. Wade in the coming months. It appears the five justices overturning the historical decision safeguarding a woman’s right to choose are, to no one’s great surprise: Samuel Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Chief Justice John Roberts, it seems, would uphold the Mississippi law that bans abortions after 15 weeks, while keeping the shreds of Roe v. Wade intact.

Samuel Alito, who wrote the draft, argues “The Constitution makes no reference to abortion and no such right is implicitly protected by any constitutional provision.” The Constitution as originally written would also view his colleague Justice Thomas as only 60% a Person. The leak is an incredibly rare glimpse into the Supreme Court’s process, and normally such drafts are tightly held secrets. Given the draft’s scope and the national impact, it’s no great surprise that this is the one leaked, however. Nearly a quarter of American women have an abortion by 45. Alito also takes aim at Lawrence v. Texas and Obergefell v. Hodges, because the Religious Right has never hidden their homophobic and misogynistic agenda.

As usual, this ruling will have a deliberate, disproportionate effect on poorer Americans and minorities. Wealthier Americans can travel to a pro-choice state, at least until conservatives also make traveling across state lines for the procedure illegal. Better access to healthcare and birth control make abortion less of a necessity for the upper classes, which is why abortions are increasingly concentrated among those under the federal poverty line. Nor will abortion end in anti-choice states once their legislatures ban the procedure. They’ll move underground and risky home procedures will become more commonplace, as will the avoidable deaths of women desperate to end their unwanted pregnancies. Not that the justices are explicit in their goals; Alito even claims on page 30 of the draft to be concerned for aborted Black babies, and subtly accuses abortion rights activists of being motivated by eugenics.


It’s difficult to overestimate the effects this ruling will have, particularly for but not limited to red states. 26 states are likely to move for an abortion ban as soon as possible, leading to more unwanted children, most of them born into poverty. Women and girls will be prosecuted for seeking medical care. State investigation and interference in naturally occurring miscarriages will become ever more invasive. Women will die of self-performed or back-alley abortions out of fear of prosecution. Bolstered by their federal successes, state legislatures controlled by reactionary Christian fundamentalists will move against birth control, further restricting reproductive freedom. And their assault on trans rights is merely the first step in overturning Americans’ right to consensual same-sex relationships and marriage. Meanwhile, red-state restrictions will increase the strain on blue states’ medical resources, as pregnant women are forced to seek healthcare elsewhere. If you thought it was difficult to get an OBGYN appointment now thanks to Covid, just wait a year.

Response from Democrats has been predictably toothless so far. In a joint statement Nancy Pelosi and Chuck Schumer said “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,” before pivoting yet again to Trump as though Roe v. Wade hasn’t been a Republican target since 1973. President Biden stated the following:

It’s impossible for me to view this subject objectively, and both statements smack of careless public guardians passing the buck onto folks who’ve had their voting rights gradually restricted while Democratic leaders look on and chide voters for not doing more while securing their own positions. Decades of running for public office have relied on the appearance of fighting Republican fundamentalists without winning the war while sycophants and apologists like Joe Manchin and Krysten Sinema ensure the party is never forced to defend its principles. Abortion rights even in blue states are far from safe; even as they move to enshrine those rights, there is always the risk of a fresh legislature or state justices stripping access to appropriate care. Our daughters will grow up with less reproductive freedom than their mothers. That should worry everyone.

Image sources (in order of posting): Getty, Alex Wong