According to a draft opinion obtained by Politico, the U.S. Supreme Court intends to overturn Roe v. Wade, reversing nearly 50 years of constitutional protection for abortion, and let states set their own restrictions on the procedure.
If this draft reflects the final decision of the Court, expected this summer, it would virtually eliminate abortion access in Texas. Last year, the Legislature passed a so-called “trigger law” that would go into effect 30 days after the Supreme Court overturns Roe v. Wade, making performing abortion a felony.
The law would make an exception only to save the life of the pregnant patient or if they risk “substantial impairment of major bodily function.” Doctors could face life in prison and fines up to $100,000 if they perform abortions in violation of the law.
It’s unclear how closely the court's final ruling will hew to the draft opinion, the publication of which is unprecedented in the history of the court.
The case before the U.S. Supreme Court centers on a ban in Mississippi on abortions after 15 weeks. Since the 1973 ruling in Roe v. Wade, the court has consistently struck down bans on abortion before viability, the point at which a fetus could likely survive outside the womb, usually seen as 22 to 24 weeks of pregnancy. The 1992 decision in Planned Parenthood v. Casey upheld Roe v. Wade and ruled that states could not impose restrictions that created an “undue burden” on pregnant people seeking an abortion.
But with this Mississippi case, the court and its new conservative majority agreed to reconsider the precedent set by Roe v. Wade. While some court watchers predicted that they might uphold the 15-week ban but leave aspects of the precedent in place, this draft opinion indicates they intend to eviscerate both Roe and Casey.
“We hold that Roe and Casey must be overruled,” the draft obtained by Politico reads. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
This draft does not change anything about the legal status of abortion in Texas at this moment. The state has banned abortions after about six weeks of pregnancy through a unique civil enforcement mechanism that has, so far, withstood judicial review.
Amy Hagstrom Miller, president and CEO of Whole Woman’s Health, which operates four clinics in Texas, said they have been providing abortions up to that six-week mark since the Texas law went into effect Sept. 1, and they will keep providing abortions as long as it’s legal. She said it’s critical for people to realize that this is not a final ruling.
“When news like this comes out, it confuses people and scares people, and I think there are people who will read these stories and think that abortion is already illegal,” said Hagstrom Miller. “I think it’s important for us to speak to these people and let them know this isn’t final, and at least for now we can still offer them the care they deserve.”
Abortion opponents in Texas are cautiously optimistic about the release of this draft ruling. Joe Pojman, executive director of the Texas Alliance for Life, said it’s “encouraging,” but he’s still holding his breath.
“We’ve been burnt before,” said Pojman, “I’m waiting to see the final opinion.”
In 1992, then-Justice Anthony Kennedy, a conservative, had indicated that he was going to vote with the majority of the court to overturn Roe in Planned Parenthood v. Casey. Then he changed his mind, and the court voted to uphold the ruling.
“Assuming the draft is legitimate, I’m reminding myself that this is far from the court’s final opinion,” Pojman said. “So it’s encouraging, but it is not definitive in my mind at all."
John Seago, legislative director for Texas Right to Life, said the fight is “not done yet.”
“This was was probably leaked to put pressure on the justices, to cause backlash that would possibly make them take a step back from this categorical victory for the pro-life side,” he said. “That’s what we’re concerned about, and [we] won’t fully celebrate until we see the final opinion actually released.”
University of Texas law professor Liz Sepper also cautioned against certainty in the wake of the leak, reiterating that this draft, dated Feb. 10, may not reflect the current or final opinion of the court. But based on the oral arguments of the case in December, she said it wasn’t surprising to see several of the justices endorsing this full-throated rejection of Roe v. Wade.
“This would effectively end abortion access in much of the United States, at least in people’s home states,” she said. “For people in the southern states and the Midwest, it would mean a very long-distance to travel to access abortion.”
More than half of all states are expected to ban abortion if Roe v. Wade is overturned. According to the Guttmacher Institute, an abortion advocacy research group, that would mean the average Texan would have to drive 525 miles, each way, to obtain an abortion.
Sepper said politicians on both sides of the aisle will be closely watching the response to this draft as they prepare to respond to this summer's ruling.
Former Texas state Sen. Wendy Davis said she hopes Democrats, who have been struggling in the polls, capitalize on the outrage that this draft will likely generate.
“Our rage is going to do us absolutely no good if we don’t put our votes behind it,” she added. “And if Democrats cannot use that to their advantage in this election cycle, something’s broken.”
Abby Livingston contributed to this story.
Disclosure: Planned Parenthood and Politico have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.
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This article originally appeared in The Texas Tribune at https://www.texastribune.org/2022/05/02/texas-abortion-law-roe-wade/.
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