PHOENIX - Members of the United States Supreme Court appear poised to overturn a landmark ruling in the 70s that paved the way for legalized abortions, in certain cases, across the country.
It is important to note that the Supreme Court has yet to set an official ruling on the case involving Roe v. Wade. The court is expected to rule on the case before its term is up in late June or early July.
Here's what you should know about the landmark abortion case.
Why does it appear likely that Roe v. Wade is being overturned?
On May 2, 2022, it was reported by Politico, based on a leaked draft majority opinion, that the Supreme Court is poised to not only overturn Roe v. Wade, but the Casey decision.
"Roe was egregiously wrong from the start. Its reasoning was exceptionally weak. And the decision has had damaging consequences," Justice Samuel Alito wrote, in the draft opinion. "We hold that Roe and Casey must be overruled."
On May 3, officials with the Supreme Court confirmed that the leaked draft ruling is authentic, but also states that the draft opinion "not represent a decision by the Court or the final position of any member on the issues in the case."
In its article, Politico cautions that the draft was written in February, and may have already been re-written. In addition, Justices sometimes change their votes.
What led to this draft decision?
In July 2021, the Attorney General of Mississippi, Republican Lynn Fitch, argued that the Supreme Court should overturn Roe v. Wade.
"Under the Constitution, may a State prohibit elective abortions before viability? Yes. Why? Because nothing in constitutional text, structure, history, or tradition supports a right to abortion," Fitch, along with four of her attorneys, wrote in a brief.
In December 2021, the Supreme Court heard arguments over Mississippi's anti-abortion law, which bans abortion after 15 weeks of pregnancy. In that case, the justices were asked to not only overturn Roe v. Wade, but also the 1992 Planned Parenthood v. Casey decision that affirmed Roe v. Wade.
During arguments for that case, all six conservative justices signaled that they would uphold the Mississippi law, and five asked questions that suggested that overruling Roe and Casey was a possibility.
Has a leak ever happened before?
Paul Bender, a law professor at Arizona State University who worked in the 1990s as the Principal Deputy Solicitor General with responsibility for the Supreme Court, said what happened is history in the making.
"My first reaction was ‘My God! I have never heard about a leak that bad,'" said Bender.
At least one leak of a lesser magnitude has happened in the past, and it involves the Roe v. Wade ruling.
On Jan. 29, 1973, Time Magazine reported on an abortion ruling that would later become known as Roe v. Wade.
"Last week TIME learned that the Supreme Court has decided to strike down nearly every anti-abortion law in the land. Such laws, a majority of the Justices believe, represent an unconstitutional invasion of privacy that interferes with a woman's right to control her own body," a portion of the article read.
According to a report by the Washington Post on May 3, 2022, the Time Magazine article appeared on newsstands hours before the Roe v. Wade decision was announced.
What is Roe v. Wade?
According to Cornell Law School's Legal Information Institute, the case that led to the Roe v. Wade ruling involved a pregnant single woman, named then only as Jane Roe, who brought a class-action lawsuit to challenge the constitutionality of criminal abortion laws in Texas.
The woman, subsequently identified as Norma McCorvey, died in 2017.
According to an Associated Press article published at the time of her death, McCorvey was 22 when she sought to have an abortion in Texas in 1969. At the time, McCorvey was on her third pregnancy. She was also unmarried and unemployed at the time.
At the time McCorvey sought an abortion, Texas law criminalized abortions, except in cases to save a woman's life.
According to a 2020 AP article, McCorvey gave birth to her third child, whom she put up for adoption prior to the Roe v. Wade ruling.
The real identity of Jane Roe was not known until the 1980s – when McCorvey revealed herself.
What did the Roe v. Wade ruling say about abortion?
According to Encyclopedia Britannica's entry on the ruling, the court ruled that Texas laws criminalizing abortion in most instances violated a woman's constitutional right to privacy, which it found to be implicit in the liberty guarantee of the 14th Amendment to the U.S. Constitution.
The court, at the same time, disagreed with McCorvey's assertion that there is an absolute right to terminate pregnancy in any way and at any time.
Why are conservatives opposed to Roe v. Wade?
In an article published on the United States Conference of Catholic Bishops website, Susan E. Wills argues that in the Roe v. Wade decision, the Supreme Court, among other things, exceeded its constitutional authority, misrepresented the history of abortion and attitudes towards it, and assigned a right to privacy in abortion that has no foundation in the text or history of the U.S. constitution.
According to Pew Research Center, a number of Christian faiths, including the Roman Catholic Church, the Church of Jesus Christ of Latter-day Saints, and the Southern Baptist Convention, oppose abortion rights with few or no exceptions.
Nationally, the Republican Party is known for its oppositional stance to abortion, with the party adopting a pro-life stance in its 2016 platform.
Have officials enacted abortion restrictions before?
Prior to recent events, the federal government, along with a number of states have enacted anti-abortion measures.
According to Planned Parenthood, the federal government withholds Medicaid funding from abortion, with narrow exceptions, and in 2007, the U.S. Supreme Court upheld a federal law that banned abortion procedures in the second trimester of pregnancy.
Various states have also enacted abortion restrictions. Besides Mississippi, Arizona, and Texas have passed measures that banned abortions at 15 weeks and around six weeks (once a heartbeat is detected), respectively. Oklahoma even enacted a law that makes it a felony to perform an abortion, except to save a mother's life. Those who violate Oklahoma's law can be imprisoned for up to 10 years.
What could happen if Roe v. Wade is indeed overturned?
Until now, the court has allowed states to regulate but not ban abortion before the point of viability, around 24 weeks. If Roe v. Wade is overturned, it would remove the federal guarantee of abortion protection and allow each state to set its own rules.
On its website, the Guttmacher Institute, which describes itself as a 'research and policy organization committed to advancing sexual and reproductive health and rights worldwide,' states that 26 states are certain or likely to ban abortion if Roe v. Wade is overturned or gutted.
According to the website, 13 states have trigger bans that are tied to Roe being overturned.
Some states, like California, have enacted measures that aim to protect the privacy of abortion providers and their patients.
Theoretically, Congress could move swiftly to enshrine a national right to abortion, but that’s unlikely. Such an effort has previously stalled in the Senate, where Democrats have only a slim majority.
If there’s no legislative path to protecting abortion, it could take decades for the Supreme Court’s decision to be undone. Justices receive a lifetime appointment to the bench, and conservatives have a strong majority that will be difficult to dislodge.
If Roe v. Wade is overturned, could it affect other social issues?
Democrats and liberals fear that a sweeping decision on abortion could undermine the right to privacy, a concept that has provided the foundation for other Supreme Court rulings over the years.
On May 3, President Joe Biden singled out same-sex marriage and birth control as facing potential threat.
"It’s a fundamental shift in American jurisprudence," he told reporters.
I've heard somewhere that the Supreme Court does not overturn its rulings…
According to the Cornell Law School's Legal Information Institute, a legal doctrine called stare decisis, which means 'to stand by things decided' in Latin, does exist.
Under the legal doctrine, a court will make its decision in alignment with the previous court's decision, if a previous court has ruled on the same or a closely related issue.
The LII website states that the Supreme Court previously described the rationale behind stare decisis as "promot[ing] the evenhanded, predictable, and consistent development of legal principles, foster[ing] reliance on judicial decisions, and contribut[ing] to the actual and perceived integrity of the judicial process."
However, the LII website states that the Supreme Court has also said in the past that stare decisis is not an "inexorable command."
There have been a number of Supreme Court rulings that do not follow the doctrine of stare decisis. Such rulings include the Brown v. Board of Education, which reversed a Supreme Court ruling in the late 1800s regarding segregation, and led the the end of segregated schools. Another ruling that did not follow the stare decisis doctrine is Lawrence v. Texas, where the Supreme Court overturned its own ruling on same-sex sexual relations that was made in 1986.
How are people reacting to the draft opinion?
Cathi Herrod, a pro-life advocate with the Center for Arizona Policy who has worked for years to get Roe v. Wade overturned, she said the draft opinion represents "hope for unborn children and their mothers."
"A draft opinion is not final," said Herrod. "We hope it stands. Time will tell."
Meanwhile, Doctor Gabrielle Goodrick, a Phoenix area abortion provider, said she believes the Supreme Court would be extreme if they overturned Roe v. Wade.
"For almost 50 years, women have had the right to control their reproductive life, their family size, and to take that away from families, men and women, and to force parenthood on men and women is just not part of our democracy," said Dr. Goodrick.
Both Dr. Goodrick and Herrod said they are getting ready for the many chances that will come to Arizona if abortion is indeed banned in the state.
"We expect to see women who are not sure about their pregnancy, who are trying to decide whether to place their child for adoption," said Herrod. "We want to embrace those women. That's what 50 pregnancy women's centers are standing ready to do."
"The pro-choice community has stepped up. They will help women in other Red states travel to get the help they need," said Dr. Goodrick.
What do polls say about the nation's opinion on abortion?
According to a 2019 poll by the Pew Research Center, 61% of those surveyed say abortion should be legal in all or most cases, while 38% say abortion should be illegal in all or most cases.
In a 2021 AP-NORC poll, 61% of those surveyed say abortion should be legal in most or all circumstances in the first trimester of pregnancy. However, 65% said abortion should usually be illegal in the second trimester, and 80% said that about the third trimester.
In a Fox News poll released in 2021, 65% of those surveyed say Roe v. Wade should be allowed to stand. The same poll, however, found that overall views on abortion are divided, with the same percentage (49%) of those surveyed say that abortion should be illegal or illegal.
The Associated Press has noted that three of the justices who appear poised to overturn Roe v. Wade were appointed by former President Donald Trump, who did not win the popular vote when he was elected in 2016. A sweeping decision would invite new questions about how the nation’s highest court reflects — or conflicts with — public sentiment.
When will an official ruling be made?
The Supreme Court is expected to rule on the case before its term is up in late June or early July.
What about the leak?
In his statement on May 3, Supreme Court Chief Justice John Roberts said he has directed the Marshal of the Court to launch an investigation into the source of 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. The work of the Court will not be affected in any way," read a portion of the statement.
Bender said he is worried that the leak will move the Supreme Court from a legal institution to a political one.
"If you start doing this before a case has been decided, then you are opening the court to the same manipulations that Congress goes through all the time, and it changes the institution," said Bender.
Bender said the people who have access to the opinion are the justices, their secretaries, law clerks and. Bender said during his time as the Principal Deputy Solicitor General, opinions were sent down the printer and distributed, via an extremely confidential process.
As for who may be responsible, Bender said that is the million-dollar question.
"Hard to believe a justice would do it. It is hard to believe a law clerk would do it," said Bender. "I want to emphasize how important this is. If this is going to keep happening, it changes the way the court deals with each other."
The Associated Press (AP) contributed to this report.