What the leaked Supreme Court draft means for Roe v. Wade and abortion

Demonstrators protest outside of the U.S. Supreme Court on Tuesday, May 3, 2022 in Washington, D.C. Photo: The Associated Press
By Robert C. Jones Jr. and Michael R. Malone

Demonstrators protest outside of the U.S. Supreme Court on Tuesday, May 3, 2022 in Washington, D.C. Photo: The Associated Press

What the leaked Supreme Court draft means for Roe v. Wade and abortion

By Robert C. Jones Jr. and Michael R. Malone
Following the draft opinion becoming public earlier this week, University of Miami experts discuss what would happen if the landmark 1973 decision is overturned.

Some held signs that read “bans off our bodies,” “abortion is health care,” and “we won’t go back.” 

Others carried placards that read “I am the pro-life generation” and “divest from big abortion now.”

In the wake of the leaked draft of a Supreme Court opinion that would overturn the right to an abortion established in the landmark Roe v. Wade decision of 1973, protesters on both sides of the issue squared off in front of the nation’s highest court this week, some shouting through megaphones to get their points across. 

Written by Justice Samuel Alito and published online Monday night by the political news outlet Politico, the draft reveals that a majority of the Supreme Court justices privately voted to strike down Roe v. Wade.

The 98-page draft was leaked ahead of an upcoming court ruling on a Mississippi law that would ban almost all abortions after 15 weeks.

While the document has ignited debate across the nation on the abortion issue, it is important to understand that draft “is not yet the final decision,” said Caroline Mala Corbin, professor of law and Dean’s Distinguished Scholar at the University of Miami School of Law. 

“People should not think that abortion has become illegal yet. This is just a draft of the opinion,” she explained. “Having said that, if this opinion does become the law of the land, it essentially eliminates constitutional protection for abortion. That is, it explicitly overrules Roe v. Wade, which said the right to abortion was protected by the U.S. Constitution. And the consequence is not that abortion immediately becomes illegal across the land. The consequence is that each state gets to decide for itself whether it wants to protect or outlaw abortion health care.” 

This year, a number of states have introduced legislation aimed at restricting abortions, with some bans being enacted in at least six states. 

Should Roe v. Wade be overturned, about half the states in the U.S. would make abortion illegal, doing so in a variety of ways, according to Corbin. “They may have laws on the books from before Roe that become good law again,” she said. “They may have passed so-called ‘trigger laws’ that go into effect and make abortions illegal as soon as Roe v. Wade is overruled. Or they may be among the states that have recently been passing abortion limitations such as Florida, which recently passed a law banning abortions after 15 weeks.” 

The reversal would have disastrous consequences for women, said Mary Anne Franks, professor of law and the Michael R. Klein Distinguished Scholar Chair at the University of Miami School of Law. “All women, and ultimately men as well, will be negatively impacted by this denial of women’s basic right. But poor, nonwhite women and women who live in conservative states will suffer disproportionately.” 

While reliable long-term and emergency contraceptives and the means for self-administering abortions safely have greatly increased since Roe v. Wade, women with inadequate socioeconomic resources who live in states with restrictive abortion laws still struggle to access those benefits, Franks noted.

“Nearly half of U.S. states have abortion restrictions likely to go into effect in the wake of a Roe reversal,” she explained, “Whereas only 16 states, plus Washington, D.C., currently have measures in place to protect the right—and only four of those plus D.C. protect it fully. What is more, the leaked majority opinion indicates that the court’s hostility is not limited to abortion but will likely extend soon to contraceptives.”

Paul Russell Shockley, a lecturer in the department of religious studies, noted that for many of those who possess a Judeo-Christian worldview, legalized abortion is a condemnation against the inherent value of all life. “Though this Judeo-Christian value was not perfectly applied for a variety of reasons, 1973 Roe v. Wade is perceived as a legal sign, a historical marker, a shift of core values in the West,” said Shockley. “Abortion not only mirrors a decisive turning point from Judeo-Christian values to a humanistic one, but one that also claims man is the measure of all things.” 

Shockley, who specializes in aesthetics, the history of ideas, ethics, and the philosophy of religion, noted that religious arguments against abortion vary depending upon one’s interpretation of the Scriptures, their views of the origin of humanity, and the transmission of the human soul to the next generation. He pointed to several common traits shared within evangelical Protestantism—the country’s largest faith tradition—and said, “this belief system integrates together what is public and private, sacred and secular, mundane and fantastic, creative and logical. Thus, legalized abortion is not interpreted as a medical procedure. Abortion is ultimately a spiritual problem.” 

Professor David Kling, chair of the department of religious studies, said recent legislation and the conservative Christian viewpoint have moved the point of viable human life “to nearly the moment of conception.” But at the same time, he noted, anti-abortion or prolife Christians have a different perspective on the termination of a pregnancy that resulted from rape, incest, or complications endangering the life of a woman. 

“What’s clear is that the worldview of conservative Christians, both Catholic and Protestant, challenges the notion of ‘my body, my choice,’ for it is not the case that a woman is answerable to herself alone,” Kling said. 

The varied reactions that followed Monday’s leaked draft demonstrated just why abortion is such an extremely contentious issue fundamental to the values and lives of so many people. It has emboldened activists on both sides of the debate. Pro-life groups, for example, viewing the contents of the draft as a victory for their cause, gathered in front of the Supreme Court beginning Monday night. 

“Many people have faced the risk of unwanted pregnancy and want a full range of choices in the event it happens. On the other hand, there are people with profound moral convictions that the practice of abortion is immoral,” said Gregory Koger, professor and chair of political science in the College of Arts and Sciences. 

As a political issue, he continued, “abortion has been a mobilizing factor, especially for the conservative Christian right dating back to the ’80s. It has been one of the foremost issues that drives the Christian right, Catholics, and evangelicals to the polls. And to a lesser extent, it has been a mobilizing issue for some Democrats on the other side as well.”

As for the draft itself, Supreme Court Chief Justice John Roberts confirmed its authenticity on Tuesday, saying in a statement that he has directed the court’s marshal 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,” his statement reads. 

But “whether this investigation ever determines who did this and why is by no means certain,” said Frances R. Hill, professor of law and Dean’s Distinguished Scholar for the Profession at the School of Law. 

“Speculation about the motives of the various people who work at the court—justices, clerks, employees—and the various people related in some way to them, such as spouses, confidants, supporters, could become a very long list of potential suspects,” Hill explained. “This investigation may well be less consequential than tracking the impact of the leak on public confidence in the court, which is already viewed with something short of confidence and admiration by the highest share of the American public in the history of polling on this question.” 

Hill added that the consequences of a decision “that denies women protection from dangerous pregnancies without any exceptions in the case of rape or incest is not likely to lead to broad public acceptance of this opinion or the processes that produced it.” 

She asserted that an inquiry into the source of the leaked draft will not restore the damage to the Supreme Court and to the nation arising from the controversy. “This is not a matter of the routine identification of political winners and losers. This is not about politics as usual,” she said. “It is about the deaths of women who lack the economic resources and the personal connections required to save their lives when this opinion takes aim at them.” 

University Communications writer Janette Neuwahl Tannen also contributed to this article.