Here are the facts and just the facts:
An unknown person, for the first time in the court’s history, leaked internal Supreme Court documents to Politico, a news outlet. According to CNN, Politico’s publishing of the draft is unprecedented by the high court’s standards of secrecy. The inner deliberations among the justices while opinions are being drafted and votes are being settled are among the most closely held details in Washington. Very few people besides the judges themselves, have access to these documents. President Biden’s poll numbers are down. Midterm elections are looming, and some are speculating that it was a clerk who leaked it not only to cause a public outcry on the topic of the documents, Roe vs Wade but also to influence the midterm elections. A letter was sent out not long after the leak, on behalf of President Biden and Vice President Harris asking people to donate campaign money in light of the leaked info. There have also been numerous public announcements from politicians to the same end, pointing constituents to voting in the Midterm elections.
The point of the Supreme Court is that politics and politicians, media, and even citizens do not influence decisions. All decisions are [supposed to be] made behind securely closed doors and made based only on the constitution. That is the sole purpose of the court.
Until last night, the Supreme Court was one of the last institutions, if not the last one, to not have been infiltrated by activists attempting to change an outcome with political opinion. People may recall it happened on a regular basis, within the State Department, the White House and even the FBI, when the last president was in office.
In a statement on Tuesday, Chief Justice John Roberts said he has ordered an investigation.
“This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here,” he said. I have directed the Marshal of the Court to launch an investigation into the source of the leak.”
He added, “to the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed. The work of the Court will not be affected in any way. We at the Court are blessed to have a workforce — permanent employees and law clerks alike — intensely loyal to the institution and dedicated to the rule of law. Court employees have an exemplary and important tradition of respecting the confidentiality of the judicial process and upholding the trust of the Court.”
The second big thing to happen last night was that Politico obtained what it calls a draft of a majority opinion written by Justice Samuel Alito that would strike down Roe vs Wade.
Let’s step back a moment and understand what Roe vs Wade actually is.
Abortion Before Roe v. Wade
Most people do not realize that until the late 19th century, abortion was legal in the United States before something referred to as “quickening,” the point at which a woman could first feel movements of the fetus, typically around the fourth month of pregnancy.
According to History.com, some of the early regulations related to abortion were enacted in the 1820s and 1830s and dealt with the sale of dangerous drugs that women used to induce abortions. Unbelievably and despite these regulations and the fact that the drugs sometimes proved fatal to women, they continued to be advertised and sold.
In the late 1850s, the newly established American Medical Association began calling for the criminalization of abortion, partly in an effort to eliminate doctors’ competitors such as midwives and homeopaths. Wow…Eliminating dangerous options is one thing. Eliminating competitors by criminalizing it is another thing. Corruption and power apparently are not a new phenomenon in the US.
Additionally, some nativists, alarmed by the country’s growing population of immigrants, were anti-abortion because they feared declining birth rates among white, American-born,
In 1869, the Catholic Church banned abortion at any stage of pregnancy, while in 1873, Congress passed the Comstock law, which made it illegal to distribute contraceptives and abortion-inducing drugs through the U.S. mail. By the 1880s, abortion was outlawed across most of the country.
During the 1960s, during the women’s rights movement, court cases involving contraceptives laid the groundwork for Roe v. Wade.
In 1965, the U.S. Supreme Court struck down a law banning the distribution of birth control to married couples, ruling that the law violated their implied right to privacy under the U.S. Constitution. And in 1972, the Supreme Court struck down a law prohibiting the distribution of contraceptives to unmarried adults.
Meanwhile, in 1970, Hawaii became the first state to legalize abortion, although the law only applied to the state’s residents. That same year, New York legalized abortion, with no residency requirement. By the time of Roe v. Wade in 1973, abortion was also legally available in Alaska and Washington.
In 1969, Norma McCorvey, a Texas woman in her early 20s, sought to terminate an unwanted pregnancy. McCorvey, who had grown up in difficult, impoverished circumstances, previously had given birth twice and given up both children for adoption. At the time of McCorvey’s pregnancy in 1969 abortion was legal in Texas — but only for the purpose of saving a woman’s life.
While American women with the financial means could obtain abortions by traveling to other countries where the procedure was safe and legal or pay a large fee to a U.S. doctor willing to secretly perform an abortion, those options were out of reach to McCorvey and many other women.
As a result, some women resorted to illegal, dangerous, “back-alley” abortions or self-induced abortions. In the 1950s and 1960s, the estimated number of illegal abortions in the United States ranged from 200,000 to 1.2 million per year, according to the Guttmacher Institute.
After trying unsuccessfully to get an illegal abortion, McCorvey was referred to Texas attorneys Linda Coffee and Sarah Weddington, who were interested in challenging anti-abortion laws.
In court documents, McCorvey became known as “Jane Roe.”
In 1970, the attorneys filed a lawsuit on behalf of McCorvey and all the other women “who were or might become pregnant and want to consider all options,” against Henry Wade, the district attorney of Dallas County, where McCorvey lived.
Earlier, in 1964, Wade was in the national spotlight when he prosecuted Jack Ruby, who killed Lee Harvey Oswald, the assassin of President John F. Kennedy.
Supreme Court Ruling
In June 1970, a Texas district court ruled that the state’s abortion ban was illegal because it violated a constitutional right to privacy. Afterward, Wade declared he’d continue to prosecute doctors who performed abortions.
The case eventually was appealed to the U.S. Supreme Court. Meanwhile, McCovey gave birth and put the child up for adoption.
On Jan 22, 1973, the Supreme Court, in a 7–2 decision, struck down the Texas law banning abortion, effectively legalizing the procedure nationwide. In a majority opinion written by Justice Harry Blakmun, the court declared that a woman’s right to an abortion was implicit in the right to privacy protected by the 14th Amendment.
The court divided pregnancy into three trimesters and declared that the choice to end a pregnancy in the first trimester was solely up to the woman. In the second trimester, the government could regulate abortion, although not ban it, in order to protect the mother’s health.
In the third trimester, the state could prohibit abortion to protect a fetus that could survive on its own outside the womb, except when a woman’s health was in danger.
Legacy of Roe v. Wade
Norma McCorvey maintained a low profile following the court’s decision, but in the 1980s she was active in the abortion rights movement.
However, in the mid-1990s, after becoming friends with the head of an anti-abortion group and converting to Catholicism, she turned into a vocal opponent of the procedure.
Since Roe v. Wade, many states have imposed restrictions that weaken abortion rights, and Americans remain divided over support for a woman’s right to choose an abortion.
In 1992, litigation against Pennsylvania’s Abortion Control Act reached the Supreme Court in a case called Planned Parenthood of Southeastern Pennsylvania v. Casey. The court upheld the central ruling in Roe v. Wade but allowed states to pass more abortion restrictions as long as they did not pose an “undue burden.”
In May 2022, the nation’s highest court agreed to hear Dobbs v. Jackson Women’s Health Organization, regarding the constitutionality of a Mississippi law banning most abortions after 15 weeks of pregnancy. The case presents a direct challenge to Roe v. Wade.
Now back to last night’s Supreme Court leak, the draft was circulated in early February, according to Politico. The final opinion has not been released and votes and language can change before opinions are formally released. The opinion in this case is not expected to be published until late June.
The court confirmed the authenticity of the document but stressed it was not the final decision.
Under current law, the government cannot interfere with a women’s choice to terminate a pregnancy before about 23 weeks, when a fetus could live outside the womb.
According to the draft, the court would overturn Roe v. Wade’s holding of a federal constitutional right to an abortion. The opinion would be the most consequential abortion decision in decades and transform the landscape of women’s reproductive health in America.
What this would mean is that the decision on abortion would be determined by each individual state.
In the draft opinion, he wrote that Roe “must be overruled.”
“The Constitution makes no reference to abortion and no such right is implicitly protected by any constitutional provision,” he wrote. He said that Roe was “egregiously wrong from the start” and that its reasoning was “exceptionally weak, and the decision has had damaging consequences.”
He added, “It is time to heed the Constitution and return the issue of abortion to the people’s representatives.”
“That is what the Constitution and the rule of law demand,” he said, according to the draft.
On May 11, 2013, during an appearance at the University of Chicago Law School, Ruth Bader Ginsburg and Professor Geoffrey Stone, a longtime scholar of reproductive rights and constitutional law, spoke for 90 minutes before a capacity crowd in the Law School auditorium on “Roe v. Wade at 40, addressing exactly what Justice Alito discusses in his current argument.” She said the landmark 1973 Supreme Court decision that affirmed a woman’s right to an abortion was too far-reaching and too sweeping, and it gave anti-abortion rights activists a very tangible target to rally against in the four decades since.
“My criticism of Roe is that it seemed to have stopped the momentum on the side of change,” she said. She would’ve preferred that abortion rights be secured more gradually, in a process that included state legislatures and the courts, she added. Ginsburg also was troubled that the focus on Roe was on a right to privacy, rather than women’s rights.
“Roe isn’t really about the woman’s choice, is it?” she said. “It’s about the doctor’s freedom to practice…it wasn’t woman-centered, it was physician-centered.”
To date, nearly half of the states have or will pass laws that ban abortion, while others have enacted strict measures regulating the procedure.
Overruling Roe vs Wade will not automatically make abortion illegal across the country as some people are already claiming which is why it is important to understand the facts. It will leave the decision to regulate it up to the people of each state.
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Abortion in American History. The Atlantic.
High Court Rules Abortion Legal in First 3 Months. The New York Times.
Norma McCorvey. The Washington Post.
Sarah Weddington. Time.
When Abortion Was a Crime, Leslie J. Reagan. University of California Press.