Explained | Why are reproductive rights under threat in the U.S.?

What does a leaked U.S. Supreme Court draft on the Roe vs Wade case on the right to abortions say?

The story so far: The Supreme Court of the United States (SCOTUS) has privately voted to strike down the constitutional right to abortion as determined by the landmark Roe vs Wade case in 1973, according to a leaked draft opinion from February 2022. The leak, by news outlet Politico on May 2, has itself become a subject of profound criticism and a likely criminal inquiry within the highest court in the land. The content has provoked dismay among liberals and pro-choice advocates and jubilation on the part of anti-abortionists. While the opinion is not surprising given that a SCOTUS majority of 6-3 leans and votes conservative, it will likely set off a lengthy series of judicial battles at the state level given that it will, if it formally becomes the law of the land, leave the decision on whether to outlaw abortions to state legislators.

Roe, short for Jane Roe, is the pseudonym for a Texas woman named Norma McCorvey who in 1970 sought to have an abortion when she was five months pregnant, notwithstanding Texas’ ban on abortions except to save a mother’s life. Wade refers to Henry Wade, the district attorney in Dallas County, Texas, at the time, who was the defendant in the case. The 7-2 majority opinion of the SCOTUS was written on January 22, 1973, by Justice Harry Blackmun, paving the way for the recognition of abortion as a constitutional right in the U.S., effectively striking down a wide range of state-level abortion limitations applied before foetal viability. Foetal viability is the point at which a foetus can survive outside the womb, at the time considered to be around 28 weeks, but today is closer to 23 or 24 weeks owing to advances in medicine and technology.

Based on the Roe vs Wade case, the framework of regulations that applied towards the right to abortion required that in the first trimester, almost no limitations could be placed on that right; in the second trimester, only limitations to abortion rights that were aimed at protecting a woman’s health were permitted; and in the third trimester, state governments had greater leeway to limit the right to abortion except for cases in which the life and health of the mother were endangered.

However, Roe vs Wade was not the last word on abortion rights in the U.S. even before the latest SCOTUS opinion. In the 1992 Planned Parenthood vs Casey case, the SCOTUS threw out the so-called trimester framework yet retained the Roe vs Wade case’s “essential holding,” which established women’s constitutional right to abortion until foetal viability.

The overturning of the Roe vs Wade case has not yet been formally announced and thus not yet a part of settled law, although most legal experts believe it is only a matter of time before it becomes so. It remains to be seen whether the leaked text of the private opinion of the SCOTUS, believed to be authored primarily by Justice Samuel Alito, will be the same as the final version that enters the statute books.

Nevertheless, the conservative majority of the court, to which former President Donald Trump successfully nominated three justices, regarded Roe vs Wade to lack any jurisprudential basis within the U.S. Constitution. Hence in the first draft of their opinion, dated February 2022, the justices of the SCOTUS said, “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision… It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

Based on analysis of data from the Centers for Disease Control and Prevention, reports have shown that the typical patient seeking an abortion in the U.S. is already a mother, is in her late 20s, has obtained some college education, is relatively poor, is unmarried, is in her first six weeks of pregnancy, is seeking a first abortion, and lives in a Democratic Party-ruled state. At a broad level, therefore, the SCOTUS opinion will disproportionately affect poorer women if it becomes law. For example, in 2014, nearly 50% of women who went in for abortions were below the poverty line, with another 25% said to be relatively close to the poverty line. Reports quoted researchers saying that the growing share of poorer women in the abortion demographic “reflects improved access to effective contraception among higher-earning women, and a recognition of the growing costs of raising children among poorer women. It may also reflect the growing presence of charities that help poor women pay for abortions in states where public programs don’t.”