The Supreme Court on abortion: The Supreme Court says the leaked draft is real; Chief Justice Roberts orders an investigation

Published May 3, 2022 at 8:15 AM EDT
A crowd of people hold signs in favor of abortion rights outside the Supreme Court early today in Washington.
Brendan Smialowski
/
AFP via Getty Images
A crowd of people gather outside the Supreme Court early today in Washington.

Chief Justice John Roberts is confirming the authenticity of the draft opinion published by Politico, though he notes it doesn’t represent the court’s final position. As written, the ruling would overturn Roe v. Wade and upend the country's abortion laws.

Here's what we're following:

States across the country already have signaled their intention to restrict or ban abortion if Roe v. Wade is struck down. Some 40 million women of reproductive age live in those states, and advocates for reproductive rights say ending Roe could have seismic consequences for the country.

The news that the Supreme Court may be poised to strike down Roe. v. Wade spurred protests outside the court last night and abortion-rights activists are being urged to march in cities across the country later today.

The apparent leaking of a Supreme Court draft opinion is unprecedented in modern court history, but the high court has seen some lesser leaks in the past — including in the 1972 Roe v. Wade case.

Law

What even is a draft opinion? Here's how the Supreme Court's process works

Posted May 3, 2022 at 1:20 PM EDT
TV cameras line up outside the Supreme Court, against a gray sky.
Anna Moneymaker
/
Getty Images
TV camera crews station in front of the Supreme Court building on Tuesday in Washington, D.C.

The Supreme Court has confirmed the authenticity of the draft opinion Politico published last night and is pursuing an investigation into the leak. But the court is stressing that the opinion, which calls for overturning Roe v. Wade, does not yet equal the law of the land.

"Justices circulate draft opinions internally as a routine and essential part of the Court’s confidential deliberative work," it said in a Tuesday press release. "Although the document described in yesterday’s reports is authentic, it does not represent a decision by the Court or the final position of any member on the issues in the case."

The court's internal deliberations may be confidential, but the process of getting to a final ruling isn't entirely a secret. Here's what we know about how the nation's highest court gets from consideration to conclusion.

First come the arguments, then the private conferences

After oral arguments end, justices typically discuss the cases with their law clerks to seek out different perspectives and form an idea of how they will vote, according to the U.S. Courts website.

Then the justices hold what is known as a private conference (there are two scheduled per week, on Wednesday and Friday afternoons) to actually decide the case. They typically start by discussing which potential new cases to accept or reject, and then turn to the cases they've heard since their last such meeting.

"According to Supreme Court protocol, all Justices have an opportunity to state their views on the case and raise any questions or concerns they may have," says the U.S. Courts site. "Each Justice speaks without interruptions from the others."

The justices speak in descending order of seniority, starting with Chief Justice John Roberts. Then, in that same order, they each cast an initial vote.

Justices' votes determine who will write the opinions

Once the votes have been tallied, the senior justice in the majority (either the chief justice or, if he dissents, the justice in the majority who has served on the court the longest) will assign someone to write the majority opinion.

If a minority of justices believe that the case should have reached a different outcome, the seniormost justice in that group assigns someone to write a dissenting opinion. Any justice can also write a separate dissent of their own.

And if a justice agrees with the decision but disagrees with the reasoning behind it, they may write a concurring opinion, which others have the option to join.

How a draft opinion becomes a final ruling

This is where the draft opinions come in, as the law website SCOTUSblog explains. The assigned justices draft and circulate opinions outlining their decision and their reasoning.

"The time it takes to finalize an opinion depends on several factors, including how divided the Justices are, which justice is writing the opinion, and the court’s schedule," it says.

There's always a chance that the draft opinion doesn't end up looking similar to the final opinion, NPR legal affairs correspondent Nina Totenberg toldMorning Edition, noting that this has happened numerous times.

A majority of justices must "sign onto" the court's opinion before it can be delivered publicly, according to the U.S. Courts website.

"No opinion is considered the official opinion of the Court until it is delivered in open Court (or at least made available to the public)," it says.

All cases are typically decided by the time the court goes on summer recess in late June or early July. Other than that, there aren't any rules around when exactly decisions must be released — but those that are unanimous tend to come out sooner than those that are more divisive.

There are unanswered questions about this particular case

So how exactly is this process playing out for the case in question? Politico's reporting offers potential clues as well as puzzles, according to Totenberg.

Politico is reporting — citing an unnamed source "familiar with the court's deliberations" — that four of the other conservative justices voted along with Justice Samuel Alito in the conference they held after hearing oral arguments in December.

Roberts' vote is unclear, according to Politico, which said it's also not known whether he will join an already-written opinion or craft his own.

Totenberg says that during oral arguments, Roberts seemed to suggest that he wanted to move slowly, upholding the Mississippi law (which bans abortions after 15 weeks) at the heart of the case and leaving the basic framework of Roe otherwise intact. She adds that the idea "got no takers" at the time.

"The question in my mind is whether he even assigned this opinion," she adds, explaining that it's possible that he endorsed the leaked draft opinion or that he disagreed. In that case, she says, the most senior member of the majority would decide who would write the opinion — and that would be Justice Clarence Thomas.

"And I can't think of any reason why Thomas wouldn't give himself this opinion," Totenberg says. "There are still some mysteries to this, but I would be shocked if this were not an early draft of the opinion that will eventually come out."

Member Station Reports
From WESA

Before Roe, Pittsburgh hospitals used a legal loophole to provide abortions

Posted May 3, 2022 at 1:08 PM EDT

As WESA’s Lucy Perkins reports:

Back in the late 1960s and early 1970s, if you needed an abortion in the Pittsburgh area you had two options: Get a referral to a doctor in New York or Washington (if you could afford it) or undergo an illegal abortion. Should complications arise, a trip to the ER could result in a visit from the local police.

So in 1968, doctors at two Pittsburgh-area hospitals took advantage of a loophole in Pennsylvania law to provide the procedure at a doctor’s office or the hospital.

But their actions were not without significant pushback.

Head to WESA for more.

Reaction

Protesters gather on Supreme Court steps to oppose — or cheer — the draft opinion

Posted May 3, 2022 at 12:17 PM EDT
Pro-choice and anti-abortion activists demonstrate in front of the U.S. Supreme Court Building on May 3, 2022 in Washington, D.C.
Anna Moneymaker
/
Getty Images
Pro-choice and anti-abortion activists demonstrate in front of the U.S. Supreme Court Building on May 3, 2022 in Washington, D.C.

Protesters have gathered on the steps of the Supreme Courtthis morning to oppose — or cheer — a draft majority opinion suggesting that it intends to strike down Roe v. Wade.

The draft was leaked and published last night by Politico. It doesn't represent the final Supreme Court opinion on the matter.

NPR’s Danielle Kurtzleben and Barbara Sprunt have been outside the Supreme Court since 8 a.m. ET, and tell Morning Edition that both crowds have grown over the last few hours.

Abortion rights advocates tell NPR they are fearful and upset. Rachel Rawlings and her wife, who drove down from Philadelphia to Washington, are worried about the implications of the leaked opinion.

“I am a little over 50, OK, so Roe v Wade was decided when I was five and my first memories were of Watergate. So I've kind of always known that things could change,” Rawlings said, adding that she's worried that Obergefell, the case that legalized gay marriage nationwide, could be struck down too.

Anti-abortion groups Students for life and Progressive Anti-Abortion Uprising are also represented outside the Supreme Court today. Kristen Monahan tells NPR that she's there to show conservative justices they should “stick to their guns” on overturning Roe.

“I was a little bit surprised, because I tend to be a bit skeptical with conservative justices, because a lot of times conservative politicians tend to pay lip service to the pro-life movement to gain votes. So I've always kind of been like, I don't know if they'll really overturn Roe. But this was like a sign that they're actually thinking about it,” she says.

Politics

Biden says abortion decision would be 'radical' and threaten other rights

Posted May 3, 2022 at 12:02 PM EDT
President Biden speaks into a microphone while standing outside of Air Force One.
Nicholas Kamm
/
AFP via Getty Images
President Joe Biden speaks to members of the press prior to boarding Air Force One at Joint Base Andrews in Maryland on Tuesday.

President Biden responded to Chief Justice Roberts’ confirmation of the draft Supreme Court opinion on abortion rights, calling it “quite a radical decision” if it ultimately is handed down and saying he hopes there are not enough votes for it in the end.

He made the remarks at Joint Base Andrews before departing on a trip to Alabama.

Biden said he believes the reasoning in the draft decision “would mean that every other decision related to the notion of privacy is thrown into question,” adding that he believes there is a right to privacy in the Constitution and saying that is why he voted against a number of conservative Supreme Court nominees when he served in the U.S. Senate.

Biden said he’s worried such a decision would threaten “a whole range of rights and the idea we’re letting the states make those decision, localities, this would be a fundamental shift in what we’ve done.”

Biden specifically said he was worried about challenges to contraception and same-sex marriage rights. In the draft decision, Justice Samuel Alito asserts that overturning Roe v. Wade wouldn’t threaten other rights based in privacy, but also wrote that rights not enumerated in the Constitution must be rooted in U.S. history and tradition.

Biden again said he supports Congress codifying Roe into law, but declined to say whether he thinks Senate Democrats should end the legislative filibuster to do so.

He also appeared to suggest incorrectly that the draft opinion would fully block abortion rights in the U.S., “that no one can make the judgement to choose to abort a child based on a decision by the Supreme Court,” even though it would leave the decision up to individual states.

Here's what could happen if Roe v. Wade is overturned

Posted May 3, 2022 at 11:30 AM EDT
A crowd of people gather outside the U.S. Supreme Court early on Tuesday after a draft opinion was leaked indicating the court could strike down Roe v. Wade.
Alex Brandon
/
AP
A crowd of people gather outside the U.S. Supreme Court early on Tuesday after a draft opinion was leaked indicating the court could strike down Roe v. Wade.

Nearly one in four women in the U.S. are expected to get an abortion at some point in their lives, according to a 2017 study.

If Roe v. Wade is struck down, as a leaked draft memo from the Supreme Court suggests it could be, it will have a major impact in states across the country that already have signaled their intention to restrict or ban abortion.

According to the Guttmacher Institute, a research group that supports abortion rights, 58% of U.S. women of reproductive age — or 40 million women — live in states that are "hostile" to abortion.

Politico reports that the draft opinion could still change before the court issues its final ruling in the coming weeks, possibly overturning of Roe would not ban abortion nationwide.

Still, it may allow states to drastically restrict or even ban abortion. Advocates for reproductive rights say could have seismic consequences for the country.

Here's what a future without Roe v. Wade could mean:

  • More than 20 states have laws that could restrict or ban abortion soon after the Supreme Court overturns Roe, according to Guttmacher. One type of statute, called a "trigger law," is designed to take effect after a Supreme Court ruling. Some states also still have pre-Roe abortion bans on the books that haven't been enforced. Other laws express the intent of states to crack down on abortion if permitted by the Supreme Court.
  • States that continue to allow abortion could see an influx of patients seeking care. For example, after Texas enacted its roughly six-week ban on abortion last year, some residents began to get abortions out of state. In the final four months of last year, Planned Parenthood clinics in states near Texas reported a nearly 800% increase in abortion patients from Texas compared the same period in the prior year.
  • Women of color will bear the brunt of further abortion restrictions. According to The Associated Press, Black and Hispanic women get abortions at higher rates than their peers. Women of color are also often poor and could have a harder time traveling out of state for an abortion, the AP reported.
  • Limits on abortion access can lead to negative long-term health effects. A major study from the University of California, San Francisco, found that women are harmed by being denied abortions. The women surveyed who gave birth had economic hardships that lasted for several years, were more likely to raise the child alone and were at higher risk of developing serious health problems than those who'd had abortions.
  • Some blue states already are taking steps to enshrine the right to abortion in state law. From Colorado to New Jersey, Democratic governors have signed laws protecting reproductive rights and announced their intention to provide abortion services to people who live in states where the procedure is restricted.
Just In
Accountability

Chief Justice Roberts orders an investigation into the leak

Posted May 3, 2022 at 11:29 AM EDT
Chief Justice John Roberts wearing a black robe and posing for a portrait.
Erin Schaff/Pool
/
Getty Images
Chief Justice John Roberts sits during a group photo of the Justices at the Supreme Court in Washington, DC in April 2021.

Chief Justice John Roberts is confirming the authenticity of the draft opinion published by Politico, though he notes it doesn’t represent the court’s final position.

In a statement, Roberts said he has directed the Supreme Court marshal to investigate the leak.

“To the extent this betrayal of the confidences of the court was intended to undermine the integrity of our operations, it will not succeed,” he said. “The work of the Court will not be affected in any way."

Politics

The Senate will vote on a bill creating a federal right to an abortion, Schumer says

Posted May 3, 2022 at 11:20 AM EDT

Senate Majority Leader Chuck Schumer, D-N.Y., said the Senate will vote to codify the right to abortion into federal law, in response to a leaked draft of a Supreme Court opinion that would overturn Roe v. Wade.

“A vote on this legislation is not an abstract exercise, this is as urgent and real as it gets,” Schumer said in a floor speech on Tuesday morning, following Politico’s Monday night reporting of the draft, which NPR has not been able to verify and could change before the final version comes out this summer. “We will vote to protect a woman's right to choose and every American is going to see which side every senator stands.”

Any such vote would be symbolic. Democrats control the Senate but only hold half the seats, and they can’t muster the 60-vote supermajority needed to pass the law that Schumer suggested.

Some senators, including Bernie Sanders of Vermont, have called to eliminate the filibuster’s supermajority rules to pass a law to protect abortion rights with a simple majority vote. Democrats do not have the support from within the party for such a tactical move, as two centrist senators — Kyrsten Sinema of Arizona and Joe Manchin of West Virginia — are opposed to changing any filibuster rules without bipartisan support.

During his floor speech, Schumer made a plea to Americans to lobby their members of Congress in support of abortion rights.

“To the American people, I say this: the elections this November will have consequences because the rights of 100 million women are now on the ballot. To help fight this court's awful decision, I urge every American to make their voices heard this week and this year,” he said.

Schumer also repeated his accusation that conservative justices “lied” to the Senate in the course of their confirmations regarding their views on whether the Roe decision was settled precedent. Senate Minority Leader Mitch McConnell has denounced the leak but not commented on substance of the apparent draft decision, which could change before the Supreme Court officially issues its ruling.

Video

Protesters made their way to the Supreme Court immediately after last night's report

Posted May 3, 2022 at 11:00 AM EDT

Protesters gathered outside the Supreme Court last night in Washington, D.C. When the Supreme Court hands down its decision in a highly-watched Mississippi abortion case, likely this summer, access to legal abortion could end for more than 100 million Americans, including those living in nearly every Southern state and large swaths of the Midwest and West.⁠

Twenty-six states are poised to immediately ban or acutely curtail access to abortions if the Supreme Court chooses to overturn or weaken Roe v. Wade, the landmark 1973 decision that for nearly 50 years has guaranteed people's right to seek an abortion, according to the Guttmacher Institute, a research group in favor of abortion rights.⁠

If the leaked draft opinion by the Supreme Court holds — it was published by Politico but has not been confirmed by NPR — so-called "trigger laws" would take effect and automatically ban or curtail abortion in 13 states: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah and Wyoming. ⁠

Member Station Reports
From New Hampshire Public Radio

Civics 101: What's at stake if Roe v. Wade is overturned?

Posted May 3, 2022 at 10:43 AM EDT

There's lots we're still learning this morning. Thankfully, the crew at Civics 101 has given us a 30-minute guide to the original case and what's at stake should Roe v. Wade be overturned by the Supreme Court.

Check out the episode on NPR One.

Reaction

Women's March is calling for people across the U.S. to protest at the same time

Posted May 3, 2022 at 10:22 AM EDT
Protesters hold signs while standing in front of a barricade.
Brendan Smialowski
/
AFP via Getty Images
Demonstrators stand behind a police barricade in front of the US Supreme Court in Washington, DC, on Tuesday.

Liberal advocacy organization Women's March is urging people to gather outside federal buildings, town halls and city centers across the U.S. this evening to rally for abortion rights.

In response to the leaked draft opinion published by Politico last night, it's calling for the protesters to come together at 5 p.m. in their respective time zones.

"We're showing up to defend abortion rights, say bans off our bodies, and demand elected officials take action before the right-wing justices on the Supreme Court overturn Roe v. Wade," reads a rally pledge on its website. "Bring your families, your signs, your stories, your heart, and your commitment to save Roe and access to safe and legal abortion for all who need it."

The Party for Socialism and Liberation is planning protests at 5 p.m. in cities like Los Angeles, San Francisco, New York, Atlanta, Boston, Albuquerque, Dallas, Louisville and Washington. It also has announced plans for rallies in places like Chicago, Raleigh and Anchorage in the coming days.

And while today's nationwide protest is a coordinated event, it's not likely to be the only one of its kind. Women's March vows that its supporters will keep showing up "in larger and larger actions in the days, weeks, and months to come."

Politics

Biden urges 'officials at all levels of government to protect a woman’s right to choose'

Posted May 3, 2022 at 9:55 AM EDT
U.S. President Joe Biden speaks at the Eisenhower Executive Office Building yesterday in Washington.
Alex Wong
/
Getty Images
U.S. President Joe Biden speaks at the Eisenhower Executive Office Building yesterday in Washington.

President Biden is urging “elected officials at all levels of government to protect a woman’s right to choose,” following the leak of a draft of a Supreme Court opinion that suggests the justices are poised to overturn Roe v. Wade, the landmark abortion decision.

“It will fall on voters to elect pro-choice officials this November,” Biden said in a statement. “At the federal level, we will need more pro-choice Senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law.”

Biden also said: “We do not know whether this draft is genuine, or whether it reflects the final decision of the Court.”

Here's the president's full statement:

"We do not know whether this draft is genuine, or whether it reflects the final decision of the Court.

"With that critical caveat, I want to be clear on three points about the cases before the Supreme Court.

"First, my administration argued strongly before the Court in defense of Roe v. Wade. We said that Roe is based on “a long line of precedent recognizing ‘the Fourteenth Amendment’s concept of personal liberty’… against government interference with intensely personal decisions.” I believe that a woman’s right to choose is fundamental, Roe has been the law of the land for almost fifty years, and basic fairness and the stability of our law demand that it not be overturned.

"Second, shortly after the enactment of Texas law SB 8 and other laws restricting women’s reproductive rights, I directed my Gender Policy Council and White House Counsel’s Office to prepare options for an Administration response to the continued attack on abortion and reproductive rights, under a variety of possible outcomes in the cases pending before the Supreme Court. We will be ready when any ruling is issued.

"Third, if the Court does overturn Roe, it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose. And it will fall on voters to elect pro-choice officials this November. At the federal level, we will need more pro-choice Senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law."

History

The original Roe v. Wade ruling was leaked, too

Posted May 3, 2022 at 9:51 AM EDT
Nine Supreme Court justices, all white men wearing black robes, pose for a photo.
Associated Press
Members of the Supreme Court of the United States pose in Washington, D.C. in April 1972. Seated in the front row, from left, are, Associate Justices Potter Stewart, William O. Douglas, Chief Justice Warren E. Burger, Associate Justice William J. Brennan Jr., and Byron R. White. Standing in the back row, from left, are, Associate Justices Lewis F. Powell Jr., Thurgood Marshall, Harry A. Blackman, and William H. Rehnquist.

The news site Politico sent shockwaves across the country last night when it published what appears to be an initial draft majority opinion — written by Justice Samuel Alito and reportedly circulated inside the court — suggesting that the U.S. Supreme Court intends to strike down Roe v. Wade.

NPR has not independently verified the document, and it's not yet clear what resemblance it might bear to the court's final opinion, which is expected in the coming months. But NPR legal affairs correspondent Nina Totenberg toldMorning Edition that "it really smells like, looks like and feels like the real thing."

Striking down Roe effectively would end federal protection for abortion rights, opening the door for states to ban or restrict access to the procedure. While such a ruling would have enormous consequences, legal experts and onlookers alike are also struck by how the draft opinion made its way into public view in the first place.

Leaks of any kind are rare at the Supreme Court, and Totenberg says there hasn't been such a massive breach in modern history. She called it a "bomb at the court" that undermines everything the body stands for internally and institutionally, including its members' trust in their law clerks and in each other.

"No fully-formed draft opinion has been leaked to the press or outside the court," Totenberg says. "Once or twice there may have been leaks that say how is something going to turn out, or after-the-fact that somebody may have changed his or her mind. But this is a full-flown, Pentagon Papers-type compromise of the court's work."

There have indeed been leaks at the court before, albeit of a different scale. One of them actually was about the case at the heart of today's conversation: In 1973, the original Roe decision was leaked to the press before the court had formally announced it.

Jonathan Peters, a media law professor at the University of Georgia, noted in a Twitter thread that there were actually two Roe-related leaks in the 1970s.

First, the Washington Post published a story about the court's internal deliberations, including a June 1972 memo from Justice William O. Douglas to his colleagues that was mysteriously leaked.

Seven months later, Time magazine published the final decision and vote details just hours before the court was due to announce it — the result of an early scoop and a delayed ruling.

A Supreme Court clerk named Larry Hammond told Time staff reporter David Beckwith, a law school acquaintance, that the Roe ruling was coming, according to lawyer and author James Robenalt, who detailed the incidentin a Washington Post column yesterday.

Hammond gave Beckwith the information "on background," and it was only to be reported once the opinion came down from the court. But the ruling was slightly delayed, and that week's magazine ended up hitting newsstands a few hours too soon.

Then-Chief Justice Warren Burger was reportedly furious about the leak, demanding a meeting with Time's editors to tell them off. He also sent a letter to the other justices demanding that the leaker be identified and punished, and threatened to subject law clerks to lie-detector tests if no one came forward, Robenalt said.

According to Peters, this was also the origin of Burger's "20-second rule," in which any law clerk caught talking to a reporter would be fired in under half a minute.

Hammond offered his resignation to his boss, Justice Lewis Powell. But Powell didn't accept it, and instead called Burger to tell him "that Hammond had been double-crossed," writes Robenalt, who interviewed Hammond for his 2015 book about the political and cultural events of January 1973.

Burger wasn't quick to forgive the magazine, but accepted Hammond's apology and let him stay on as Powell's clerk. He continued in that role for an additional term before leaving the court to join the Watergate Special Prosecution Force.

"The story of Hammond’s close call became legend to other clerks on the court at the time and has been passed down as a cautionary tale over time," Robenalt added.

Five decades later, the court is once again grappling with an internal leak about an unreleased ruling on matters concerning reproductive rights.

Totenberg told Morning Edition that while such a leak is not a crime, she believes the court will try internally to figure out who was responsible, adding that "it's a career-ender for whoever did."

Politics

The leaked draft ruling striking down Roe v. Wade could have big political impacts

Posted May 3, 2022 at 9:23 AM EDT
Protestors hold signs outside of the Supreme COurt.
Kevin Dietsch/Getty Images
/
Getty Images North America
Demonstrators gather outside of the U.S. Supreme Court Monday night.

The news that the Supreme Court could be poised to strike down Roe. v. Wade may have massive political impacts as states hold primary elections, including 13 this month.

As primary season kicks off, reproductive rights may become a highly mobilizing issue for voters. Abortion rights advocates are putting intense pressure on Democrats in Congress to codify abortion rights in legislation before the court rules officially.

A leaked draft opinion published by Politico shows that a majority of justices on the court have voted to overturn the landmark abortion ruling; NPR could not immediately confirm the authenticity of the draft, which is not the final Supreme Court opinion on the matter.

NPR senior political editor and correspondent Domenico Montanaro joined Morning Edition to discuss the political implications of such a ruling. Listen here.

Polls show that Democrats are facing significant headwinds in these elections, reports Montanaro, but the leaked report on Roe v. Wade may mobilize voters and cause a larger turnout than previously expected. Protesters gathered outside the Supreme Court last night after the draft report was leaked, and more protests are expected nationwide tonight and in the coming weeks as the Court gets closer to releasing its final decision.

Congress increasingly will be under heavy pressure from abortion-rights activists to pass laws that codify abortion rights and end the filibuster, says Montanaro.

House Speaker Nancy Pelosi and Senate Majority Leader Chuck Schumer issued a joint statement Monday, saying such a ruling "would go down as an abomination" and accusing conservative justices on the court of lying during their confirmation hearings.

“Several of these conservative Justices, who are in no way accountable to the American people, have lied to the U.S. Senate, ripped up the Constitution and defiled both precedent and the Supreme Court’s reputation — all at the expense of tens of millions of women who could soon be stripped of their bodily autonomy and the constitutional rights they’ve relied on for half a century," the statement said.

Politics

If Roe is overturned, trigger laws will ban abortion in states across the country

Posted May 3, 2022 at 8:51 AM EDT
A crowd of anti-abortion protesters gather outside the Supreme Court last night in Washington.
Alex Brandon
/
AP
A crowd of anti-abortion protesters gathered outside the Supreme Court last night in Washington.

When the Supreme Court hands down its decision in a highly-watched Mississippi abortion case, likely this summer, access to legal abortion could end for more than 100 million Americans, including those living in nearly every Southern state and large swaths of the Midwest and West.

Twenty-six states are poised to immediately ban or acutely curtail access to abortions if the Supreme Court chooses to overturn or weaken Roe v. Wade, the landmark 1973 decision that for nearly 50 years has guaranteed people's right to seek an abortion, according to the Guttmacher Institute, a research group in favor of abortion rights.

If the leaked draft opinion by the Supreme Court holds — it was published by Politico but has not been confirmed by NPR — so-called "trigger laws" would take effect and automatically ban or curtail abortion in 13 states: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah and Wyoming.

In addition to the trigger laws, nine states still have abortion bans on the books that were enacted before Roe was decided in 1973. Those states — four of the trigger-law states along with Alabama, Arizona, Michigan, West Virginia and Wisconsin — could choose to immediately begin enforcement.

And four other states — Georgia, Iowa, Ohio and South Carolina — passed so-called "heartbeat" laws in recent years that ban abortion after cardiac activity is detectable, which can be as early as six weeks into a pregnancy. All four laws are currently blocked by courts, but injunctions could be lifted if the Supreme Court overturns Roe.

The Guttmacher Institute also sees strong indications that four other states — Florida, Indiana, Montana and Nebraska — could move quickly to sharply curtail abortion, including conservative political climates and recent passage of laws that restrict abortion.

Overview

A leaked draft opinion could spell the end of federal protection for abortion rights

Posted May 3, 2022 at 8:14 AM EDT
Protesters stand outside at night holding signs in favor of and against abortion.
Stefani Reynolds
/
AFP via Getty Images
Pro-life and pro-choice activists gather at the U.S. Supreme Court in Washington, DC, on Monday night.

The 1973 case Roe v. Wade has guaranteed the right to an abortion for nearly 50 years. Now the U.S. Supreme Court seems poised to overturn it, according to an initial draft majority opinion that was leaked and published last night by Politico.

NPR has not independently obtained this document, which appears to be authored by conservative Justice Samuel Alito and suggests a majority of justices believe that Roe should be struck down. But court watchers say it appears to be genuine.

Abortion rights advocates have long warned that the court — which now has a 6-3 conservative majority — could take such a step. It heard oral arguments in December for Dobbs v. Jackson Women's Health Organization, a case that challenges Mississippi's ban on abortion after 15 weeks, and is expected to officially rule on the case before the end of its term in late June or early July.

NPR's Sarah McCammon, who covers reproductive rights, spoke to Morning Edition about how experts and advocates are processing this report, and what might happen next. Listen here or read on for details.

The leak is notable — and the ruling itself would have massive consequences

Amy Howe, the founder of SCOTUSblog, told McCammon she has no reason to doubt the draft opinion's authenticity. She says this kind of leak is highly unusual, and believes the justices will regard it as "an enormous breach."

The draft opinion states that "Roe was egregiously wrong from the start" and effectively says there is no Constitutional right to abortion services. If such a ruling does come to pass, it would enable states to severely restrict abortion — as many have been preparing to do.

McCammon says she's not hearing much indication that the court's final opinion will come to a different conclusion. For now, she adds, abortion rights groups are reminding people that abortion is still officially legal across the U.S. at this moment, and watching for the final opinion.

The news is reverberating across the political spectrum

Because this is a leaked draft, groups on both sides are being cautious about what they say, according to McCammon.

Anti-abortion advocates appear to be cheering the news, while abortion rights advocates are reacting with anger and sadness about what they fear will be the court's decision.

For example: Steven Aden with Americans United for Life says he likes what he's seeing, and that the leaked draft opinion means it's time for state lawmakers to get to work. Meanwhile, hundreds of abortion rights supporters demonstrated in front of the Supreme Court last night, and the Women's March is calling for nationwide protests.

Abortion moves into the spotlight for the 2022 midterms

Michelle Colon of SHERo Mississippi, where the current case originated, says the end of Roe would hit lower-income people especially hard — but that activists will still try to help patients get abortions, whether through travel or potentially abortion pills.

McCammon says this is poised to become a major campaign issue in the upcoming midterm elections. More than half of states are poised to ban most or all abortions, according to some estimates, and groups are preparing to make this an opportunity to get voters to the polls.

Reaction

Governors swiftly react to reports of leaked draft opinion of Roe v. Wade

Posted May 3, 2022 at 8:04 AM EDT
Security personnel put up barricades in front of the U.S. Supreme Court at night.
Alex Brandon
/
AP
Police put barricades in place as a crowd of people gather outside the Supreme Court in Washington, D.C. on Monday night.

A majority of the U.S. Supreme Court has voted to overturn the landmark 1973 Roe v. Wade ruling that established the right to abortion , according to a leaked draft opinion published by Politico on Monday.

NPR could not immediately confirm the authenticity of the draft Politico published.

In the 98-page draft, Alito said Roe was wrongly decided, saying the issue should be decided by politicians, not courts. If Roe is reversed, it would not federally outlaw abortion. However, it would shift the power to states to decide on the procedure's legality.

Twenty-one states are poised to immediately ban or acutely curtail access to abortions if the Supreme Court chooses to overturn or weaken Roe v. Wade, according to the Guttmacher Institute, a research group in favor of abortion rights.

Reactions to the report, however, were swift. Within hours after the Politico report was published, demonstrators assembled outside the Supreme Court, many calling for the preservation of the 1973 law.

Several governors issued statements following the news. Here's what they said:

Alabama

"This unprecedented leak is concerning, outrageous and a blatant attempt to manipulate the sacred procedures of the U.S. Supreme Court. Those responsible should be held accountable. My prayer is that Roe v. Wade is overturned and that life prevails," said Alabama Gov. Kay Ivey, a Republican.

Arkansas

"I have advocated for the reversal of Roe v. Wade all my political career. The leak from someone within the court is reprehensible and should lead to an investigation but I do hope the court returns authority to the states," said Republican Arkansas Gov. Asa Hutchinson.

California

"Our daughters, sisters, mothers, and grandmothers will not be silenced. The world is about to hear their fury," said California Gov. Gavin Newsom, a Democrat. "California will not sit back. We are going to fight like hell.

Colorado

"In light of the reported decision of the Supreme Court to overturn Roe v. Wade, CO remains a state where freedom is respected and where any person has the ability to live, work, thrive, and raise a family on their own terms," said Democratic Colorado Gov. Jared Polis.

He added: "While states like Texas, Florida and Arizona are engaging in the unwelcome intrusion of government into deeply personal and religious decisions, Colorado remains a refuge where any person has the ability to live, work, thrive, and raise a family on their own terms."

Connecticut

"Our state continues to take the steps necessary to protect and expand reproductive rights," said Democratic Connecticut Gov. Ned Lamont. "Tonight [Lt. Gov. Susan Bysiewicz] and I say it louder and with more resolve than ever before, we will do everything in our power to defend abortion rights in Connecticut."

Illinois

"Hell no! In Illinois, we trust women. We cannot let their most profound and personal rights be violated," said Illinois Gov. JB Pritzker, a Democrat.

Maine

"I want to be very clear: unlike an apparent majority of the Supreme Court, I do not consider the rights of women to be dispensable," said Maine Gov. Janet Mills, a Democrat. "As long as I am Governor, I will fight with everything I have to protect reproductive rights and to preserve access to reproductive health care."

Michigan

"Our work is more important than ever. I'll fight like hell to protect abortion access in Michigan," said Democratic Michigan Gov. Gretchen Whitmer.

Minnesota

"Not on my watch," said Minnesota Gov. Tim Walz, a Democrat.

Nevada

"In Nevada, we're committed to protecting reproductive rights - I've signed legislation affirming this right and expanding access to healthcare," said Democratic Nevada Gov. Steve Sisolak. "And as long as I'm Governor, I'll continue to do so."

New Jersey

"I want to assure every New Jerseyan that today's news about the Supreme Court does not change access to abortion in our state," said New Jersey Gov. Phil Murphy, a Democrat."Access to reproductive health care remains available to anyone who needs it in New Jersey."

New Mexico

"The ramifications of this decision would be devastating for New Mexico women," said Democratic New Mexico Gov. Michelle Lujan Grisham."Today and every day, the action we've taken to protect and expand abortion rights in New Mexico is more important than ever. Access to abortion is access to health care – and that won't change here."

New York

"I refuse to let my new granddaughter have to fight for the rights that generations have fought for & won, rights that she should be guaranteed," said Democratic New York Gov. Kathy Hochul. "For anyone who needs access to care, our state will welcome you with open arms. Abortion will always be safe & accessible in New York."

North Carolina

"Now more than ever, governors and state legislatures must stand up for women's healthcare. We know the stakes and must stand firm to protect a woman's choice and access to medical care," said North Carolina Gov. Roy Cooper, a Democrat.

Oregon

"All Americans should have access to abortion — full stop. Abortion is health care and protected by state law in Oregon. We will fight to keep it that way, no matter what this Supreme Court decides,"said Democratic Oregon Gov. Kate Brown.

Pennsylvania

"Abortion is and will remain legal in Pennsylvania," said Democratic Pennsylvania Gov. Tom Wolf."3 things to keep in mind: 1) An official ruling has not yet been made. 2) Once #SCOTUS does rule, it's up to states to pass legislation to change abortion laws. 3) I'll veto any anti-choice legislation that lands on my desk."

Rhode Island

"Here in Rhode Island, we will always protect a woman's right to choose," said Rhode Island Gov. Dan McKee, a Democrat. "We will NOT go backwards on reproductive rights."

South Dakota

"If this report is true and Roe v. Wade is overturned, I will immediately call for a special session to save lives and guarantee that every unborn child has a right to life in South Dakota,"said Republican South Dakota Gov. Kristi Noem.

Washington

"NOT HERE, NOT IN OUR LIFETIME," said Washington Gov. Jay Inslee, a Democrat. "Washington is and will remain pro-choice. And we will not slow down in the fight to ensure safe, affordable access to every person who needs it."

Wisconsin

"Our work to defend access to reproductive healthcare has never been more important," said Democratic Wisconsin Gov. Tony Evers."Before I became governor, I promised I'd fight to protect access to abortion and reproductive rights. I've kept that promise, and I will fight every day as long as I'm governor."