A leaked draft of a potential Supreme Court opinion suggests the justices plan on overturning the right to an abortion established by the landmark case Roe v. Wade. It’s highly unusual for such a leak to occur, but several sources familiar with the Court have confirmed its authenticity. Reproductive rights advocates and legal experts have warned that access to abortion in the U.S. could be severely curtailed now that there is a 6-3 conservative majority on the high court.
The leaked opinion centers on a Mississippi law that would ban abortions after 15 weeks. The justices wrote that the abortion precedent set by Roe was “egregiously wrong from the start,” according to the document obtained by Politico.
Several states have already passed or introduced laws that would severely limit access to abortion, including Texas, Oklahoma, and South Dakota. If the Supreme Court strikes down Roe v. Wade when it announces its final decision in June, it will leave the question of access up to individual states. Around half of all states would likely pass legislation that would either limit or do away with abortion altogether.
The initial draft was authored by Justice Samuel Alito and was signed by Justice Clarence Thomas and all three of President Donald Trump’s nominees to the Court — Justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett.
It’s possible that the justices could amend the opinion by removing certain language and changing the wording, but the 49-year legal precedent established by Roe and Planned Parenthood v. Casey, which reaffirmed a woman’s right to an abortion, appears to be coming to an end.
“We hold that Roe and Casey must be overruled,” reads the document. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
“Its reasoning was exceptionally weak, and the decision has had damaging consequences,” it goes on to say. “And far from bringing about a national settlement of the abortion issues, Roe and Casey have enflamed debate and deepened division.”
The court may decide to keep some parts of the ruling or eliminate it altogether, which would leave the decision whether to allow abortions up to elected officials. Without a sizeable majority in Congress, neither party can pass legislation that would either guarantee or eliminate access to abortion in the U.S., which leaves the decision up to state lawmakers.
Hundreds of pro-choice proponents gathered in front of the courthouse just a few hours after the news was announced.
But it’s still possible the Court could change its mind.
“We don’t know if the document as reported by Politico is legitimate, and we don’t know if it represents the views of a majority of the Supreme Court,” said Nancy Northup, president of the Center for Reproductive Rights, which represented the clinic challenging the Mississippi law.
“What we do know is that if the Supreme Court overturns Roe v. Wade it will be an unjustified, unprecedented stripping away of a guaranteed right that has been in place for nearly five decades,” she added, “it’s important to remember that the Court has not yet issued a decision and abortion remains legal in the United States.”
What Does This Mean for Healthcare Workers?
While abortion is still legal throughout the country, several states have already passed laws that severely limit access to abortion, including Texas and Oklahoma.
In Texas, providers can be sued by private individuals if they are caught providing an abortion, while Oklahoma has banned all abortions in the state after six weeks. Providers may face fines or jail time if they break these laws. Dozens of conservative states could follow in their footsteps now that the Supreme Court appears willing to overturn Roe. Experts say 23 states could ban abortion outright in the months to come.
We have already seen hundreds of patients cross state lines to access abortions since these laws have taken effect. If more states pass laws restricting access to abortion, women will have to travel to a state where abortion is still legal.
Liberal states like California and Oregon are passing laws to protect a women’s right to choose by increasing access. California’s law will even cover the cost of travel for low-income patients to ensure safe access to abortion. Connecticut lawmakers are also working on a law that would expand abortion rights in light of the leaked Supreme Court document.
We will likely see a mass migration of women seeking abortions as they fly and drive to states that still allow the procedure. This will put added pressure on healthcare clinics and providers that perform abortions in states where it is still legal.
For example, California’s Planned Parenthood clinics treated around 7,000 patients from other states in 2020 before these laws were enacted. That number jumped to 46,000 in 2021, and experts say it could rise to 1.4 million if the Court decides to reverse Roe.
We will also likely see more providers crossing state lines or adding reproductive healthcare to their services to increase access to abortion in states where it is legal.
“This is the nightmare scenario we in the reproductive health, rights and justice space have been sounding the alarm about,” said Jodi Hicks, the head of Planned Parenthood Affiliates of California. “We will do all we can to continue to provide abortion services to all who need it or seek it here in California.”
But access will often be an issue of class. Low-income women will have the most trouble accessing reproductive care once Roe is overturned. They may not have the means to drive hundreds of miles to the nearest clinic or hop on a plane to California.
Meanwhile, healthcare providers in states where abortion is illegal will no longer be able to perform the procedure. They will need to refer patients to clinics in other states. Performing an abortion illegally may result in fines or jail time, depending on state law.
We will also see more companies cater to a post-Roe future by helping women access the procedure safely. Several tech startups are working on ways to connect women with abortion providers all over the country. For example, the app Expectful is shifting its model to help women access abortions, either in person or by ordering abortion pills in the mail.
“As state laws evolve in the wake of the Court’s forthcoming decision, we will continue to create content and programs to support all women, regardless of their unique situation,” said Nathalie Walton, the chief executive of Expectful.
Women all over the country will likely have more trouble accessing abortions regardless of where they live once Roe is overturned. The remaining abortion providers will see a spike in demand for their services. This will likely lead to longer wait times and more unplanned pregnancies.