Historic “breach” puts abortion rights advocates and opponents on alert for an upcoming earthquake

For the prospect that has been in conflict for decades, no one really has any idea what will happen if the Supreme Court overturns Roe v. Wade.

It was fairly clear when the court heard arguments in December about whether Mississippi could ban most abortions after 15 weeks of pregnancy, that at least five justices supported upholding the Mississippi law. It also seems likely that they would have preferred to go too far with giving up the right to abortion that had been guaranteed to women since Roe decided in 1973.

A leaked opinion draft published by Politico on Monday night — itself a historic breach of the court’s top-secret deliberation process — simply points to what those who followed the debate closely suspect suspected: Roe and the 1992 case that supported it, Planned Parenthood in the Southeast is no longer Penn Case v. Casey anymore.

“Roe was grossly wrong from the start. Her reasoning was exceptionally poor, and the decision had dire consequences,” states a draft opinion obtained by Politico and written by Judge Samuel Alito. Politico said Alito was writing on behalf of a majority that includes Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Connie Barrett, but not Chief Justice John Roberts.

There are several caveats here, even after the draft was confirmed as “original” by Roberts, who also said he ordered an investigation into the source of the leak. First, draft opinions can and can actually change – the opinions of the majority can become a minority. That’s what happened with the Affordable Care Act of 2012 case — although the initial vote was to repeal the law as unconstitutional, a deal was eventually struck to support the core of the ACA while providing a key requirement, Medicaid expansion, optional for states. These deliberations were detailed by Supreme Court Correspondent Joanne Biskubek in her 2019 autobiography on Roberts, “The President.”

Even if the basic votes are not changed, draft opinions are often changed significantly before they are released.

The Supreme Court process is also an iterative one: Justices circulate drafts back and forth, agreeing, dissenting, and amending. That is why there are often multiple, opposing, and concordant opinions on a single issue. As Roberts noted in his Tuesday statement, “Although the document described in yesterday’s report is correct, it does not represent a decision of the court or the final position of any member on the issues in the case.”

All that said, however, it seems unlikely that any of the five justices in the draft decision to overturn Roe and Casey would change their opinion on the threshold case.

Which leads us to the next question: What next?

Essentially, the answer is obvious. A number of conservative states already have anti-abortion laws on the books that will take effect if the Roe court overturns. Red states that lack so-called trigger bans will likely rush to pass as many prohibitions and restrictions as possible. Blue states will likely try to make abortion available to travelers from other states.

But the political impact is darker. Will women rise up and protest, as they did when President Donald Trump was elected, then lead the November midterm elections toward the Democrats? Or will the reaction be more as it was in Texas, where the Washington Post noted this week, “Republicans did not pay an obvious political price to ban abortion after cardiac activity was discovered, about six weeks into the pregnancy.” The Supreme Court has so far refused to stop the Texas law, although it is in direct conflict with the Roe Act, which technically remains the law of the land until an opinion is issued to repeal it.

The leak alone changed the content of the debate.

“It worries me very much that, in 50 years, we will decide that women don’t have the right to choose,” said President Joe Biden, who has mostly avoided this sensitive issue since becoming president. “If this decision continues, it really is a radical decision.” (Biden, apparently for the first time in his presidency, used the actual word “abortion” in his prepared statement and responses to reporters on Tuesday.)

“I intend the Senate to have a vote on legislation to legalize the right to abortion,” Senate Majority Leader Chuck Schumer told the chamber Tuesday morning. “Every American will see which side every senator is on.”

Schumer has so far resisted having such a vote, mainly because not every Democrat would necessarily vote for such a bill, which could have broader ramifications than Roe’s reinstatement.

And Republicans, so far, downplay the potential political influence. Senate Minority Leader Mitch McConnell, largely responsible for adding judges to the court who would make Roe’s coup, focused his reaction on the leak. “The shocking breach that occurred last night was an attack on the independence of the Supreme Court,” he said in a statement.

But even GOP activists say they are not worried about the voter backlash. “Take me very skeptical that Scotos’ decision will have a tangible impact on the midterm,” tweeted Brendan Buck, Republican communications adviser and top House aide John Boehner and Paul Ryan.

Among the revelers are opponents of abortion, although they understand that this is not the last word. Jane Mancini, president of the anti-abortion group March for Life, tweeted.

One of the many wild cards in all of this is the role that major corporations play in facilitating abortion for employees and their families. Some large companies, including Amazon, Citigroup, Yelp, Lyft and Uber, are specifically creating benefits to help their workers obtain and pay for reproductive health care.

For now, both sides seem to be affected by the upcoming potential earthquake; Proponents and opponents of abortion rights flock to the sidewalk in front of the Supreme Court and the Capitol. But politically, this would be a marathon, not a sprint.

A final official decision from the court is expected by the end of June.

HealthBent, a regular feature of Kaiser Health News, provides insight and analysis of policy and policy from KHN’s senior Washington correspondent, Julie Rovner, who has covered health care for more than 30 years.

Julie Rovner: [email protected], jrovner

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