On Tuesday night, Politico published a story revealing a leaked draft, written by Justice Samuel Alito, of a ruling that would overturn Roe v. Wade, which said that abortion was protected by the U.S. Constitution in 1973.
Although the Supreme Court has not yet issued a final ruling, Justice John Roberts confirmed that the document was legitimate, indicating that a majority of the justices are willing to take this monumental step. Such a decision, if upheld, is sure to once again open a fierce debate between conservatives and liberals on one of the most historically divisive and controversial issues in the nation.
Leaving aside the scandalous leak of the Court’s draft, a possible overturning of Roe v. Wade will have important practical effects on the legality of abortion in many parts of the country and has the potential to change the narrative around the November midterm elections.
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What is Roe v. Wade and what would happen if the Court overturns it?
The Roe v. Wade court decision was written in 1973 during the sexual revolution, which had begun the previous decade. The ruling concerned the case of “Jane Roe” (a fictitious name assigned to the plaintiff) who sued the laws prohibiting abortion in the state of Texas. The Court, in a 7-2 majority, ruled that abortion is a constitutional right based on a reading of the 14th Amendment (passed in 1868 to protect the rights of newly freed slaves) which secures a “right of privacy” that allows a woman to have an abortion and that laws prohibiting abortion infringe on that right.
The 1973 decision was a watershed in the discussion of abortion in the United States and, from its origins, was a highly controversial ruling. Since the 1970s, pro-life activists and conservative politicians have campaigned to overturn Roe v. Wade, arguing that such a controversial and important decision should be discussed within democratic institutions and not decided by a group of unelected officials. Pro-abortion activists, on the other hand, argue that Roe secures a fundamental right for women and that overturning it would be a setback for women.
The constitutionality of abortion was also tested in 1992 in Planned Parenthood v. Casey, where the Court reaffirmed (narrowly) Roe, but added new parameters for defining the legality of regulations banning abortion.
The possibility of eliminating Roe comes after the Court heard arguments in the Dobbs v. Jackson Women’s Health Organization case, which debates the constitutionality of Mississippi‘s law that makes most abortions illegal after 15 weeks. The state of Mississippi asked the Court, dominated by the so-called “conservative wing,” to strike down the previous Roe and Casey rulings so that each state would have the power to decide whether abortion should be legal or not.
If Alito’s draft receives the approval of the majority of the Court, this does not mean that abortion would be illegal nationwide, but that the decision on the legality of abortion would return to the hands of each state. While Democratic states like California would keep their pro-abortion laws on the books, other states, like Mississippi or Florida, would have new laws regulating it.
Political implications of overturning Roe v. Wade
Like any controversial decision, overturning Roe v. Wade will not only bring a new reality about the legality of abortion in the country, but has the potential to bring profound political effects that can be felt in the short, medium, and long term.
The first obvious implication of a possible removal of Roe is that the Democratic Party will try to use the ruling as a tool to motivate its voting base, which is less than thrilled with the work of President Biden. According to Gallup, 91% of Democrats agree with abortion in any or some circumstances, so unifying the party around this issue seems like an obvious strategy for Democrats.
Already Biden has signaled that he will use abortion as an issue to motivate the electorate. In a statement he says it will be up to voters to vote for pro-abortion politicians in the midterm elections.
The second implication is that the more radical wing of the Democratic Party will push to either expand the Court and fill it with a liberal majority or destroy the filibuster with the intention of passing a law legalizing abortion nationwide without the need for a two-thirds majority. Indeed, within minutes of Politico‘s report, Bernie Sanders posted a tweet calling for the legalization of abortion and the elimination of the filibuster.
Finally, the decision to eliminate Roe will be used by the most progressive sectors of the Democratic Party to question the legitimacy of the Court, arguing that the decision was drafted and supported by judges they believe were illegitimately appointed by Trump and the Republican Party, politicizing the Court’s decisions and making it a partisan issue.
It is essential to clarify that it is not true that the eventual overturning of Roe v. Wade would lead to a nationwide ban on abortion. Such a decision would actually pass the power to regulate or ban abortion to each state. States such as New York or California would continue to have exactly the same regulation they currently have. The issue, the last, would be to pass power from the Court to the people.