A leaked draft majority opinion suggests the Supreme Court is preparing to rule Roe v. Wade to reverse the landmark 1973 ruling that established a woman’s constitutional right to an abortion.
The current case, Dobbs v. Jackson Women’s Health Organization, addresses a 2018 Mississippi law that bans abortions after 15 weeks except in cases of medical emergency or serious fetal abnormality.
Read: Everything you need to know about the case that could tip Roe versus Wade
An official decision isn’t expected until June or July, but in the draft, first reported by Politico, Assistant Judge Samuel Alito wrote that, contrary to the earlier court’s opinion, the constitution does not implicitly protect abortion.
Roe, he said, “was terribly wrong from the start.”
But what did the Supreme Court in Roe v. Wade said? What constitutional principles did the judges rely on to determine that a woman has the right to terminate her pregnancy? And what was the status of reproductive rights before Roe was decided?
Here’s what you need to know.
What is Roe v. Calf?
Roe v. Wade is the 1973 Supreme Court decision that found a woman has a constitutional right to an abortion.
In 1969, attorneys for a pregnant Dallas woman filed a lawsuit in the US District Court for the Northern District of Texas to challenge state law prohibiting abortion unless the mother’s life was in danger.
The court agreed, but Texas appealed directly to the Supreme Court.
How did the Supreme Court in Roe v. Wade decided?
In the opinion for the 7-2 majority, Associate Justice Harry Blackmun supported the lower court’s decision that denying a woman the right to choose to conceive violated the due process clause of the 14th Amendment, which, as he wrote, “the law protects privacy, including a woman’s qualified right to terminate her pregnancy.”
The decision to have a first-trimester abortion, Blackmun wrote, was made between a woman and her doctor. According to this, the state “can regulate and even prohibit abortion unless it is necessary … to preserve the life or health of the mother”.
Who were Roe and Wade?
“Jane Roe” was the pseudonym of plaintiff Norma McCorvey, who revealed her identity four days after the sentencing.
McCorvey, 22, was a single, unemployed mother of three living in Texas when she tried to terminate her pregnancy in 1969.
Though she won her case, she never had the abortion: by the time the Supreme Court rendered its verdict four years later, McCorvey had already given birth to a girl whom she was putting up for adoption.
Henry Wade was the District Attorney in Dallas County, Texas, charged with enforcing Texas’ abortion law.
Was abortion illegal in the US before 1973?
Prior to the 1850s, most US states applied British common law, which allowed abortions before “hurrying” when a pregnant woman can first feel the movements of the fetus at about 15 to 20 weeks.
By 1900, however, most states had made abortion a crime except in certain circumstances—typically when the mother’s life was at stake or in the case of rape or incest.
When Roe was contested in 1973, only four states — Alaska, Hawaii, New York, and Washington — had completely lifted their bans on abortion. Another 13 had eased restrictions, according to Planned Parenthood. The decision in Roe v. Wade has effectively lifted abortion bans in 30 states.
What other Supreme Court cases have helped shape current abortion policy?
Roe v. Wade wasn’t the only case affecting a woman’s right to vote. A handful of cases before and after have helped establish the current landscape.
United States vs Vuitch, 1971
Two years before Roe, the Supreme Court ruled that a DC abortion ban was not “unconstitutionally vague” if it made an exception for maternal health.
Although Vuitch upheld the district’s ban, it found that the Supreme Court had jurisdiction to rule on state abortion regulations.
Planned Parenthood vs. Danforth, 1976
After Roe, the Supreme Court issued several opinions emphasizing a woman’s right to terminate a pregnancy. In that ruling, the judges overturned a Missouri statute that requires a married woman to get her husband’s consent before having an abortion.
Harris vs McRae, 1980
The Supreme Court upheld the Hyde Amendment, a Congressional measure prohibiting the use of federal funds, namely Medicaid, to pay for an abortion.
In the majority opinion, Associate Justice Potter Stewart wrote that “it does not follow that a woman’s agency carries with it a constitutional entitlement to the financial resources to exercise the full range of protected choices”.
City of Akron v. Akron Center for Reproductive Health, 1983
This was one of several cases in the 1980s rejecting informed consent regulations, which require patients to be given information about the medical risks and alternatives to abortion and to comply with a 24-hour waiting period.
Planned Parenthood in Southeastern Pennsylvania vs. Casey, 1992
In that controversial ruling, the court found that state laws could not place an “unreasonable burden” on a woman’s right to an abortion, a less stringent standard than that of Roe v. Wade set. And the responsibility for proving that regulation is extreme lies with the woman, not the government.
Casey was referring to a challenge to a sweeping Pennsylvania statute that included a 24-hour waiting period and an informed consent provision — as well as the requirement that a minor must obtain permission from at least one parent before having an abortion, and that a wife must provide them must notify husband.
All provisions of Pennsylvania’s abortion law, except for spousal notification, were complied with.
“The result,” wrote the Pew Research Center, “was that a state’s interest in and regulation of potential life could now arguably extend throughout a woman’s pregnancy.”
What is the current Supreme Court case that could topple Roe?
Dobbs v. Jackson Women’s Health Organization is addressing a Mississippi law that bans abortions after the first 15 weeks of pregnancy except in cases of a medical emergency or a serious fetal abnormality.
The Jackson Women’s Health Organization challenged the measure shortly after it was passed in 2018, and in November of that year, the U.S. District Court for the Southern District of Mississippi ruled in favor of the clinic.
In December 2019, the Fifth Circuit unanimously upheld the district court’s decision.
Mississippi appealed the verdict to the Supreme Court in October 2021, and judges heard hearings last December. The court is expected to announce its verdict by the end of this court session in June.
If Alito’s draft opinion points to the court’s final ruling, it would effectively strike down Roe, which protects a woman’s right to an abortion for the first 24 weeks.
In this scenario, regulation would likely fall back on the states, 26 of which have laws banning or severely restricting abortion.
The information contained in this article is for educational and informational purposes only and is not intended as health or medical advice. Always consult a physician or other qualified healthcare provider with any questions about a medical condition or health goals.
https://www.cnet.com/health/what-is-roe-v-wade-inside-the-supreme-court-decision-that-legalized-abortion/ What is Roe v. Calf? In the Supreme Court decision that legalized abortion