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The Leakage of the Supreme Court’s Draft Decision

Drawing of a gavel coming down upon Roe v. Wade to symbolize the Supreme Court’s draft decision to overturn the landmark case. Illustration by Sophie Locker.

At the beginning of May, the draft of the Supreme Court decision regarding overturning the landmark case Roe v. Wade was leaked to the public. Some feel that this decision would be detrimental to the health and livelihood of women in the United States, as it  would leave access to a legal and safe abortion up to individual states. 

The case of Roe v. Wade was decided in 1973 with a 7-2 holding that while the right to privacy is not explicitly stated in the United States Constitution, it is implied in the Due Process Clause of the Fourteenth Amendment that there is a “fundamental right to privacy.” This decision protected women’s right to abortion within a certain gestational time frame. 

The Supreme Court has confirmed that the leaked draft of the decision is in fact authentic, however, it is also important to note that it is not the formal opinion as no official holding has been made or released by the Supreme Court. Although the leaked decision is not final, the 98-page draft does strongly suggest that the Supreme Court will eventually make the final decision to overturn Roe v. Wade. If this ends up being the result, the progress that has been made in the last fifty years, since Roe v. Wade, regarding women’s right to bodily autonomy,  will essentially be reversed. According to the New York Times, Cecile Richards, the President of Planned Parenthood from 2006 to 2008, has stated that the Republican party is using their political power to take away women’s rights, saying “[e]nding legal abortion will not end abortion. It simply will mean that women are no longer safe in this country.” On the other side, in response to the leakage of the Supreme Court draft, Republican leaders have commented more on the breach in privacy than on the issue itself; Marsha Blackburn Republican Senator of Tennessee, stated “[t]his is an attack on the court. This is someone who’s done something that is unprecedented. They decided to leak this.”

If Roe v. Wade is overturned, women’s rights to abortions, reproductive healthcare, and contraceptives will be left to the states. In a prediction made by the New York Times, 17 states will continue to actively protect women’s rights to abortion, while the rest will continue to implement various degrees of restrictions against them. Among the remaining states that would restrict abortion rights, 13 states would implement trigger laws, legislation that determines abortions in any trimester will immediately be banned. These 13 states are namely those that are located in the South and tend to lean more conservatively. CNN is also predicting that the final decision that the Supreme Court releases will have the potential to widen the major social and political division in the United States. 

While the Supreme Court draft leakage was taking place, the Women’s Health Protection Act was about to go through the Senate. This act is a Democratic bill intended to protect abortion and women’s reproductive rights, even if the Supreme Court overrules Roe v. Wade. It would explicitly prohibit many forms of abortion restricitions, therefore making it more expansive than Roe v. Wade. This vote within the Senate became more complicated with the leakage of the Supreme Court draft decision as it was leaked only a few weeks prior to the day the Senate was scheduled to vote on the bill. Questions are now being raised as to whether or not the leakage could have been used to intentionally swat the senators’ votes. In response to the way the Senate voted on the bill, Vice President Kamala Harris issued a response, stating that “[t]his vote clearly suggests that the Senate is not where the majority of Americans are on this issue […] [a] priority for all that care about this issue—the priority—should be to elect pro-choice leaders.” This is an example of the downstream damage that this leakage has already created, and could be a window into the way that decisions will be made based on this knowledge. This vote illuminates the values of leaders in the U.S. government and where they stand on the issue of women’s rights. This was also expressed by Democratic Senator Amy Klobuchar of Minnesota, saying “I think it’s really important to have this vote to see where everyone stands.”

Since the initial 1973 decision of Roe v. Wade, pro-choice non-governmental organizations supporting women’s right to reproductive healthcare have been popping up around the U.S. One such organization is the National Abortion Rights Action League (NARAL) Pro-Choice America—formally the National Association for the Repeal of Abortion Laws—an organization working to increase abortion access in the U.S. 

Current Executive Director of the nonprofit Youth, Rights & Justice, Heather Busby began her work in abortion rights advocacy in 2021. That year, she came on as the Executive Director of NARAL Pro-Choice Texas working in legislative and political advocacy and taking an ‘abortion out loud’ stance to attempt to destigmatize abortion. After her time as the Executive Director for NARAL Pro-Choice Texas, she co-founded the Lilith Fund, which provides direct financial assistance for people in need of abortion care while advocating to build a movement for abortion access in Texas. 

Organizations such as these exist all around the U.S., and it is especially important to note that these resources also exist in the states that plan to implement trigger laws, such as Texas. Regardless, these organizations are not immune to the impact of the Supreme Court’s decision. When asked if it will affect organizations such as NARAL Pro-Choice and the Lilith Fund, Busby said, “[a]bsolutely. Abortion funds and support organizations are already up against a huge foe in Texas, which has been subject to Republican rule since 1994.” She continued, “[r]ight now abortion is practically inaccessible in Texas since the passage of SB8, which bans abortion at approximately six weeks. Most people who need [an] abortion now have to travel out of state, which greatly increases the cost and logistics.” The Supreme Court decision will not only directly impact women who are in situations where they wish to have an abortion, but also would make it so further progress regarding policy and social advocacy done by non-governmental organizations is practically impossible. 

Unfortunately, the draft decision has not come as a surprise to many women living in the U.S., something that Busby also touched on, saying “I felt sick, but sadly, I was not at all surprised. I knew what was at stake when Trump took office in 2016 and with Justice Kennedy stepping down and then Justice Ruth Bader Ginsberg’s passing, the writing was on the wall. But Roe was the floor. Over the years, subsequent Supreme Court cases have opened the door to more and more restrictive legislation.”

The national divide surrounding the access to legal and safe abortions and women’s reproductive rights are not new, however, the passage of more recent laws—or the blockage of them—and more recent Supreme Court decisions have been chipping away at the progress that has been made. As Busby noted, “Until we change the rules in the Senate, it will be difficult to pass anything meaningful.”

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