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May 3, 2022

Supreme Court may overturn Roe v. Wade, draft opinion shows

Daily Briefing

    The Supreme Court appears ready to overturn the 1973 Roe v. Wade decision, which found that the U.S. Constitution protects abortion rights, as well as the 1992 Planned Parenthood v. Casey decision, which largely reaffirmed those rights, according to a leaked draft opinion obtained by Politico.

    May 17: Maternal and reproductive health market trends for 2022

    Details on the draft opinion

    The opinion, marked as a first draft dated in February, relates to Dobbs v. Jackson Women's Health Organization, a case currently before the court that challenges a Mississippi law banning abortions after 15 weeks. It was authored by Justice Samuel Alito.

    The Supreme Court verified the draft opinion's authenticity on Tuesday, but said it does not represent the court's final view, USA Today reports. 

    In the draft opinion, Alito states that Roe "was egregiously wrong from the start."

    "We hold that Roe and Casey must be overruled," the draft opinion states. "It is time to heed the Constitution and return the issue of abortion to the people's elected representatives."

    Roe's "survey of history ranged from the constitutionally irrelevant to the plainly incorrect," the draft states, adding that the reasoning of the case was "exceptionally weak" and that the decision has had "damaging consequences."

    "The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation's history and traditions," the draft says.

    The draft opinion says that states can make their own decision on whether abortion should be legal. "The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion," it says. "Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives."

    What happens next

    The draft's leak represents a nearly unprecedented breach of the court's confidentiality during pending cases. In response, Chief Justice John Roberts announced the court had launched an investigation.

    "To the extent this betrayal of the confidences of the court was intended to undermine the integrity of our operations, it will not succeed," Roberts said. "The work of the court will not be affected in any way."

    The court's final decision is expected by the end of June or early July.

    According to the New York Times, if the court overturns Roe v. Wade, roughly half of all U.S. states are expected to ban abortion. Research has found that overturning Roe would decrease the number of legal abortions in the United States by around 14%.

    A person familiar with the court's deliberations told Politico that Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett had voted with Alito in the conference held by the court following oral arguments in December.

    Meanwhile, Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan are working on at least one dissent, the person told Politico.

    As for Chief Justice John Roberts, CNN on Monday reported that Roberts doesn't want to entirely overturn Roe but is willing to uphold the Mississippi law being challenged in Dobbs.

    The source speaking to Politico said it's unclear how Roberts will ultimately vote and whether he'll draft his own opinion or join another. (Gerstein/Ward, Politico, 5/2; Bravin/Kendall, Wall Street Journal, 5/3; Victor, New York Times, 5/3; Fritze, USA Today, 5/3; Fritze, USA Today, 5/3)


    Maternal and reproductive health market trends for 2022

    Tuesday, May 17 | 1 p.m. ET

    webinarAfter several years defined by the pandemic, maternal and reproductive care has changed in important ways. Join Advisory Board's Jinia Sarkar and Gabriela Marmolejos to learn:

    • Our growth forecasts for maternal and reproductive health care
    • The most important trends affecting the specialty
    • How key trends will impact cross-industry stakeholders
    Register now

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