A leaked draft from US Supreme Court suggests the country's highest court could be poised to overturn a landmark 1973 Roe versus Wade case that legalised abortion across the United States. A decision to overrule Roe would lead to abortion bans in roughly half the states and could have huge ramifications for this year's elections.

In the court's first public comment since the draft was published, US Chief Justice John Roberts said, “Although the document described is authentic, it does not represent a decision by the court or the final position of any member on the issues in the case.”

He said that “this betrayal of the confidences of the court was intended to undermine the integrity of our operations and it will not succeed.”.The chief justice has sought an investigation into the source of the leak.

US President Joe Biden has blasted the "radical" draft in the Supreme Court abortion case and said “a whole range of rights” would be in jeopardy if it holds.

What is Roe vs Wade?

Roe vs Wade is the name of the lawsuit that led to the landmark 1973 US Supreme Court decision establishing a constitutional right to abortion in the United States. The majority opinion found an absolute right to an abortion during the first trimester of pregnancy.

Who were Roe and Wade?

Jane Roe was a pseudonym for Norma McCorvey, who was 22, unmarried, unemployed, and pregnant for the third time in 1969 when she sought to have an abortion in Texas. By the time the court ruled in her favour, she had given birth to a girl whom she placed for adoption. Henry Wade was the district attorney of Dallas County, Texas. It was his job to enforce a state law prohibiting abortion except to save a woman’s life, so he was the person McCorvey sued when she sought the abortion.

A look at pre-Roe landscape

Abortion was legal in just four states and allowed under limited circumstances in 16 others. Constitutional rights trump state laws, so the court's decision nullified the bans in the other 30 states. But it did allow states to impose certain regulations during the second trimester to protect the woman’s health and take steps to protect foetal life in the third trimester.

How later decisions altered abortion rights

Planned Parenthood vs Casey was a challenge to Pennsylvania abortion laws. The conservative-leaning court upheld the right to abortion while also making it easier for states to impose regulations. Since then, conservative states have been chipping away at abortion rights with laws that have engendered many more court challenges, including a recent Texas law that bans most abortions after about six weeks.

What's this new case poised to topple Roe?

Dobbs vs Jackson Women's Health Organization. It challenges Mississippi’s ban on abortion after 15 weeks. Upholding that ban would undermine both Roe and Casey, which allow states to regulate but not ban abortion up until the point of foetal viability, at roughly 24 weeks. The decision, per the draft, would likely result in a patchwork of abortion laws, with some states protecting abortion and others prohibiting it outright.

What now?

The US Supreme Court has a strong conservative majority after former president Donald Trump appointed three justices during his single term in office. The latest leaked draft was written by Samuel Alito, one of the most conservative justices. Four other justices have agreed with the opinion, enough for a majority. But no opinion is final until it is issued by the court. The draft could evolve before it is formally released. The court is expected to rule on the case before its term ends in late June or early July.

US position on abortion

Only a minority of Americans want to overturn Roe vs Wade. In 2020, AP VoteCast found that 69 percent of those surveyed wanted the Supreme Court to leave the decision intact. A more recent poll conducted by The Associated Press-NORC Center for Public Affairs Research, released last June, said 57 percent of Americans believed abortion should be legal in all or most cases.

How will Congress respond?

Congress could move swiftly to enshrine a national right to abortion, but that's unlikely. Such an effort has previously stalled in the Senate, where Democrats have only a slim majority. If there's no legislative path to protecting abortion, it could take decades for the Supreme Court's decision to be undone. Justices receive a lifetime appointment to the bench, and conservatives have a strong majority that will be difficult to dislodge.

Can Biden intervene?

Biden said he has asked officials to prepare a response to the continued attack on abortion and reproductive rights, adding that we will be ready when any ruling is issued. But without congressional action, his options are limited. Although he said he wants legislation to pass on Capitol Hill, he hasn't said whether Democratic senators should sidestep the filibuster to do so. There's unlikely to be enough support within the caucus for such a step anyway.

First Published:May 4, 2022 2:38 PM IST