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The End of the Roe v. Wade Era is Near

The biggest news in healthcare this week is also the biggest news across the country for everyone: the leaked draft opinion by Supreme Court Justice Samuel Alito that shows the court majority’s intent

This week’s biggest news in healthcare is also the most prominent news for everyone: the leaked draft opinion by Supreme Court Justice Samuel Alito that shows the court majority’s intention to overturn Roe v. Wade. Roe v. Wade made the right to seek an abortion a constitutionally protected right in 1973, and the ramifications of undoing a near-century of precedent are tremendous. Alito’s draft opinion was joined by Justices Clarence Thomas, Neil M. Gorsuch, Brett M. Kavanaugh, and Amy Coney Barrett, the last three of whom were appointed by President Trump. 

The leaked opinion, reported in an exclusive by Politico, sent shockwaves through the medical, legal, and women’s rights communities. Leaks from the highest court in the nation are extremely rare, though, ironically enough, the original Roe opinion was leaked to Time Magazine in 1973. That leak was less momentous because the weekly magazine went to print just hours before the decision was announced anyway. Chief Justice John Roberts confirmed the authenticity of the document and called for an internal investigation to find out the source, calling the leak a “betrayal” that was “intended to undermine the integrity of our operations.”

At the same time, millions of Americans feel betrayed by the likely decision. Polls have consistently found for decades that most Americans support legal access to abortion. 

However, the specifics vary. According to a poll in January, barely more than one in four Americans (28%) support overturning Roe, while 72% oppose reversing the decision. American regard for the Supreme Court has also fallen in the past two years, from 66% approval in 2020 to 51% today. A higher proportion of Americans (53%) believe the court is “mainly motivated by politics,” a stain Roberts has expressly tried to avoid during his tenure leading the Court.  

While Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan are writing a dissent, it’s unclear what Roberts’ vote will be. Several outlets have reported that Roberts does not want to overturn Roe. Some court watchers have held out hope that the Court might uphold the Mississippi law being heard, which banned abolitions after 15 weeks of pregnancy, without dismantling Roe entirely. Alito’s draft opinion called Roe “egregiously wrong from the start” has dashed those hopes for now. 

Not only would overturning Roe undo a century of precedent protecting women’s reproductive rights, but it also undermines the legacy of the late Justice Ruth Bader Ginsberg, whom Barrett replaced when Ginsberg, the first Jewish woman, and second woman overall to serve on the court, died from complications of pancreatic cancer in September 2020, just two months before the 2020 presidential election. “The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity,” Ginsberg told the Senate Judiciary Committee during her confirmation hearings. “When the government controls that decision for her, she is treated as less than a full adult human responsible for her own choices.” 

Legal analysts on Twitter warned that the opinion was still an early draft and therefore did not necessarily represent the final opinion. Votes can and have changed during the deliberation of a case and throughout opinion revisions. However, none of the major Court watcher pundits have suggested that they expect any of the five conservative justices to change their vote. 

If the leaked opinion becomes the final vote when the decision is formally released, it would immediately impact the right to abortion throughout the US. Thirteen states already have “trigger laws” that would automatically take effect and make abortion illegal when Roe is overturned. Those states include Arkansas, Idaho, Kentucky, Louisiana, Missouri, Mississippi, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, and Wyoming. There’s also no guarantee in these states that abortions would be permissible to save a woman’s life or in cases of rape or incest. 

But those aren’t the only states where abortion restrictions are likely. Nine other states still have abortion bans in the law that could take effect again if Roe is overturned, according to the Guttmacher Institute. Only 16 states and Washington, DC, have laws that expressly protect the right to abortion, and 24 states—half the US—have laws that would or could restrict abortion rights. 

Reactions to the ruling were swift and predictable. The American College of Obstetricians and Gynecologists stated within hours of Politico’s report, saying the organization “will continue to affirm that the ability of patients to access safe, legal abortion is critical for their health and well-being. We are deeply concerned by the current reports and will continue our ongoing work to prepare for a new dynamic regarding needed abortion care.”

A similar statement was issued by the American Society for Reproductive Medicine, which called the leaked opinion” troubling and antithetical to its stated goal of protecting lives.” The ASRM also pointed out the potential implications of an overturned Roe down the road: “While the immediate target of these restrictions is abortion care, there is a clear and present danger that measures designed to restrict abortion could end up also curtailing access to the family building treatments upon which our infertility patients rely to build their families. In other words: not only does this draft decision threaten the health of pregnant people, but it may also lead to fewer healthy babies being born to loving parents.”

The Democratic Attorneys General Association, who announced in 2019 that the committee would only endorse candidates who support the right to abortion access and protection of reproductive rights, called the news “devastating and disturbing” even if not yet final. “This is a moment we’ve been preparing for, and we’re already fighting back,” the DAGA said in a statement that went on to encourage people to “show up at the ballot box this year and vote to protect abortion access.” 

The first major company to make the news with their response was Amazon, who announced they would reimburse US staff who must travel for various non-life-threatening medical treatments, including elective abortions. No doubt, more companies will have to decide whether and how they will respond to the decision, though most may wait until the official decision is handed down this summer.

What do you think about this turn of events? Are you concerned about women’s health? Do you think it’s appropriate, as Alito wrote in his opinion, to leave the question of legal abortion access up to the states? We want to hear from you.

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