Fact sheet: Abortion rights and the Supreme Court

A draft opinion suggesting the Supreme Court will overturn Roe v. Wade was leaked on May 2. Our fact sheet answers your questions about abortion rights in the U.S.
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On May 2, a draft opinion prepared by Supreme Court Justice Samuel Alito was leaked to POLITICO. The draft suggested the court, when it makes its official ruling this summer, could overturn Roe v. Wade, which federally protects the right to abortion in the U.S. 

The Supreme Court confirmed the authenticity of the draft opinion, and Chief Justice John G. Roberts Jr. ordered an investigation into the leak. In a statement, the court said the draft does not represent a final decision.

Since the opinion was leaked, VERIFY viewers and people online have asked questions about the leak, the fight for abortion rights and what overturning Roe v. Wade would mean.

The VERIFY team used information from multiple sources to answer questions about the current and future state of abortion rights in the U.S. 

THE SOURCES

FAST FACTS

  • The leaked draft suggests the Supreme Court will overturn Roe v. Wade, but the court is not expected to issue an official ruling until June. Until the court hands down an official ruling, abortion rights are still federally protected.
  • If Roe v. Wade is overturned, abortion services would not be federally protected. Individual states will be able to set their own laws to either protect, restrict or ban abortion. 
  • As of May 4, 13 states have trigger laws in place should Roe v. Wade be overturned, which would effectively ban all or most abortions in those states. Some states will likely ban abortions, but do not have trigger laws in place, and other states have legalized abortion services. 

WHAT WE KNOW

How did the issue of abortion rights end up before the Supreme Court in 2022?

In December 2021, the U.S. Supreme Court heard oral arguments in Dobbs v. Jackson’s Women’s Health Organization (JWHO), a case challenging the constitutionality of a Mississippi law that bans abortions after 15 weeks.

The case has played out in Mississippi courtrooms since 2018, when the state enacted the Gestational Age Act. That law bans abortions after 15 weeks of pregnancy, with exceptions for medical emergencies or cases of severe fetal abnormalities. JWHO, which is the only provider of abortions in the state and performs them up to 16 weeks of pregnancy, and a doctor sued the state the same day the law went into effect. 

JWHO claimed the law was unconstitutional, and violated precedent set by Roe v. Wade in 1973 and Planned Parenthood of Southeastern Pennsylvania v. Casey, which was decided in 1992.

Even though a draft majority opinion was leaked, that is not the final judgment and order from the court. The court is expected to issue a ruling on the case in June, and until then, abortion is still federally protected in the United States.

Is this the first time a Supreme Court draft opinion was leaked?

There has never been a recorded instance where a full draft of a Supreme Court opinion was leaked to the public. However, there have been rare instances in which Supreme Court votes or decisions were leaked ahead of the court’s announcement.

TIME published the original decision of Roe v. Wade in its weekly magazine hours ahead of the Supreme Court’s official announcement on Jan. 22, 1973.

Jonathan Peters, a University of Georgia communications law professor and expert in Supreme Court leak history, referred in a Twitter thread to an 1852 case as one of the earliest instances of a Supreme Court decision being leaked.

What makes this leak of Alito’s opinion on Dobbs v. Jackson Women’s Health Organization so unprecedented, experts say, is that it’s a full draft of an opinion from early in the process when much is still subject to change.

“Leaking the outcome, and even a proposed vote tally, is really different than leaking these early versions of the opinion where you're getting the inside voice of the Supreme Court,” said Benjamin Barton, a law professor at the University of Tennessee Knoxville.

Read more: No, Alito's draft opinion is not the first leaked Supreme Court decision

If the Supreme Court overturns Roe v. Wade, could Congress pass a law that would federally protect abortion services?

Yes, Congress could pass a law that supersedes a Supreme Court ruling, but the Supreme Court could strike it down as unconstitutional.  

George Washington University Professor Casey Burgat told VERIFY, “A federal law is the best, most legitimate means of codifying the principles of Roe v Wade. It's not bullet-proof because a future Supreme Court case can render the new law unconstitutional, but it's by far the most feasible strategy to make abortion legal in all U.S. states.”

If legislation was passed in the Senate and signed into law by President Joe Biden, it would likely be contested in lower courts immediately and could make its way back to the Supreme Court in a matter of weeks, Doron Kalir, a clinical professor of law at Cleveland-Marshall College of Law, told VERIFY. 

Read more: Yes, Congress could pass a federal law that supersedes a Supreme Court ruling

Can states pass abortion laws if Roe v. Wade is overturned?

Yes, states can pass their own abortion laws if Roe v. Wade is overturned.

Overturning Roe v. Wade would mean abortion is no longer federally protected, so states would be able to set their own individual rules without parameters. Those state laws could either protect access to abortions, restrict access, or ban abortions entirely. 

There are 13 states that have existing laws that would allow for abortions to be banned outright, with limited exceptions for medical emergencies, severe fetal abnormalities, and cases of rape or incest, if Roe is overturned.

Those states are: Idaho, Wyoming, Utah, North Dakota, South Dakota, Texas, Oklahoma, Missouri, Arkansas, Mississippi, Louisiana, Tennessee and Kentucky.

Other states, such as Arizona, Wisconsin, Michigan, West Virginia, North Carolina and Alabama, had abortion bans in place prior to Roe v. Wade. Those states can independently choose to enforce those existing abortion bans. 

And there are some states where abortions will still be widely accessible. Those states include California, New York and Pennsylvania, among others. 

Credit: VERIFY

Read more: Yes, states can pass their own abortion laws if Roe v. Wade is overturned

Did three Supreme Court justices say they wouldn’t overturn Roe v. Wade during their confirmation hearings?

No, Supreme Court Justices Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh didn’t say that they wouldn’t overturn Roe v. Wade during their confirmation hearings, like some have claimed online

During their confirmation hearings, Gorsuch and Kavanaugh spoke to the importance of Roe v. Wade as a legal precedent that has been reaffirmed over the years. But they didn’t say that they wouldn’t overturn the landmark decision. 

Kavanaugh and Gorsuch both said if the subject of Roe v. Wade came up during their time on the bench, they would listen to all arguments before making a decision. 

During Barrett’s confirmation hearing, senators repeatedly asked her about Roe v. Wade. She declined to discuss how she might rule on a case that hadn’t yet been brought before the court, while also acknowledging Roe v. Wade’s precedent. 

Barrett said she wouldn’t “pre-commit to approaching a case any particular way,” adding later that Roe v. Wade “clearly held that the constitution protected a woman’s right to terminate a pregnancy.”

Read more: No, Justices Barrett, Gorsuch and Kavanaugh didn’t say they wouldn’t overturn Roe v. Wade during confirmation hearings

The Associated Press contributed to this report.

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