In their opinion article, Liv Akers covers the background, details, and possible effects of the leaked Supreme Court draft that threatens to overturn Roe v. Wade, including a look at a recent local walkout.
Image via NPR, Megan Farmer/KUOW
On May 2, 2022, Politico leaked the draft majority opinion of Dobbs v. Jackson Women’s Health Organization, a case that deals directly with Mississippi abortion laws. The draft would overturn two previous Supreme Court cases, Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. The nationwide reaction to the leak has been loud and passionate from both sides, and The Scroll offers a front-row seat to the events of the controversy as they unfold.
The current case, Dobbs v. Jackson Women’s Health Organization, was docketed at the Supreme Court on June 18, 2020. According to Oyez, Mississippi’s only licensed abortion facility filed a lawsuit challenging the 2018 Gestational Age Act, which strictly banned abortions at 15 weeks of pregnancy, with slim opportunity for exception. The Fifth Circuit Court of Appeals affirmed their argument that the standing Supreme Court precedent prevents the banning of abortions before viability of the fetus, and Mississippi was unable to provide evidence of viability at 15 weeks, but Dobbs applied to appeal the case to the Supreme Court on March 16, 2020 (supremecourt.gov).
Roe v. Wade is a famous 1973 Supreme Court case that declared it unconstitutional for a state to regulate abortion in the first trimester. In the second trimester, the state can impose some regulations on abortion specifically regarding maternal health, and in the third trimester, a state may regulate or completely prohibit abortion, as the fetus is, at this point, considered to be “viable.” For reference, the Mississippi law being dealt with by Dobbs bans abortion only two weeks into the second trimester. As explained by Oyez, “The Due Process Clause of the Fourteenth Amendment protects against state action the right to privacy, and a woman’s right to choose to have an abortion falls within that right to privacy. A state law that broadly prohibits abortion without respect to the stage of pregnancy or other interests violates that right.” The case also affirms that the right to privacy, even though it is not an explicitly protected right in the Constitution, can be inferred from the First, Fourth, Fifth, Ninth, and Fourteenth Amendments, and is, therefore, an unenumerated constitutional protection.
Planned Parenthood v. Casey is a 1992 case that dealt with amendments to the Pennsylvania legislature that required a minor to obtain parental consent and a married woman to obtain consent from their husband before undergoing an abortion procedure. The 5-4 decision implemented a new “undue burden” standard, in which any law creating a substantial obstacle in the way of a safe abortion before fetus viability is unconstitutional, as it indirectly prohibits abortion. This standard upheld many aspects of the Pennsylvania legislature but was used to remove the spouse consent requirement.
The leaked majority decision draft is authored by Justice Samuel Alito, who was nominated to the Supreme Court by former president George W. Bush in 2005. Oyez claims that he is known for his conservative leanings, which sometimes toe the line of libertarian. The draft states the following:
“We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this Nation's history and tradition’ and ‘implicit in the concept of ordered liberty.’”
As any AP Gov student in Grants Pass will know, there are generally two ways in which a Supreme Court justice may look at cases. One type of justice is a Living Constitutionalist, which means that they believe the Constitution is a living document that is meant to change and be reinterpreted within the context of the modern era and the way society has grown and evolved. Justice Alito is of the other category, called Originalists. This means that they aim to interpret the Constitution as they believe the Founding Fathers would have. Since being a Supreme Court Justice is a nonpartisan role, the terms “Living Constitutionalist” and “Originalist” are a way to identify liberal and conservative Justices, respectively, without placing them in the boxes of a political party. Right now, the Supreme Court is made up of primarily conservative Justices, so it makes sense that they would rule from an Originalist perspective.
Justice Alito can be categorized as an Originalist because he rules in favor of doctrines that are “deeply rooted in this Nation’s history and tradition,” as opposed to encouraging the growth and evolution of the nation. Additionally, the leaked draft also states the following:
“Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people's elected representatives. The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”
The draft argues here that abortion has become nationwide a source of debate because it was universally protected by the rulings of Roe and Casey, and removing that universal protection and allowing states to decide for themselves would minimize that debate. Judging by the sheer amount of protest that has been sparked as a result of the leak, that may not be entirely true. NPR captures images from protests taking place in Portland, Boston, Sacramento, and more, proving that overturning Roe will not stop people from speaking their minds. Additionally, there was a nationwide walkout that Grants Pass participated in on May 12, 2022, in which American high schoolers demonstrated their distaste for the decision. Even the possibility of removing Roe’s protections has sparked debate stronger than what was taking place before the leak.
Finally, the draft also states, “Roe expressed the ‘feel[ing]’ that the Fourteenth Amendment was the provision that did the work, but its message seemed to be that the abortion right could be found somewhere in the Constitution and that specifying its exact location was not of paramount importance.” This line argues that abortion is not an inherent constitutional right and, thus, cannot be protected by the Supreme Court. However, the majority opinion from Roe never claimed that abortion was in the Constitution; it used existing amendments to collectively create the unenumerated right to privacy, which abortion falls under. Overturning Roe is removing that right to privacy, not the right to abortion itself.
Since Roe does not directly imply a constitutional right to abortion, it has been used to protect Americans in areas outside of abortion that would no longer be protected if Roe is overturned. According to NPR, the ruling of Roe and its interpretation of some constitutional amendments were used to decide several other issues in different areas entirely. While Justice Alito, in the leaked draft, states that “our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” he also repeatedly states that the Supreme Court only recognizes rights “deeply rooted” in American tradition and culture. This puts several precedents in danger. For instance, the right to privacy only came about after years of cases that inferred such leading up to Roe, such as Griswold v. Connecticut (1965), which protects the right to birth control. The case rules that state bans on contraceptives are unconstitutional due to marital privacy. Additionally, the Fourteenth Amendment’s Due Process clause was crucial to the ruling of Lawrence v. Texas (2003), striking down Texas anti-sodomy laws, as well as Obergefell v. Hodges (2015), which protects gay marriage (and also cites the Equal Protection clause of the same amendment, as does Roe). If Roe is overturned, these cases and the rights they protect would be on much shakier ground, putting them in danger of being overturned, as well.
Additionally, while overturning Roe does not directly ban abortion, it would allow abortion to be banned in any state, by “return[ing] the issue of abortion to the people’s elected representatives.” According to NBC, at least 23 states will place bans on abortion once Roe is overturned, with 13 of them already having “trigger laws” (laws that have already been passed but currently have no effect) in place that would go into effect once the ruling is confirmed. The New York Times identifies these 13 states. The Guttmacher Institute, an abortion rights advocacy group, went so far as to identify 26 states that would place an outright ban on abortion following the decision being finalized. Fortunately, several states, including Oregon, have made it clear that abortion would be protected for their citizens no matter what, with some going so far as to codify protections into law in those states. Governor Kate Brown has made statements promising the protection of abortion rights on Twitter and via videos posted to social media, stating that “You cannot ban abortion, you can only ban safe abortions.”
The biggest issue pro-choice advocates have voiced concerns about in the last few weeks is how these abortion bans will disproportionately affect people of lower socioeconomic status. According to ABC, CDC data shows that Black women have the highest rate of abortions, followed by Hispanic women, and that white women have the lowest rate of abortions. Black and Hispanic women are also 1.8 and 1.5 times more likely, respectively, to be in poverty than White women. Pregnancy and childbirth can be expensive, not to mention the money it takes to actually raise and support a growing child. People who are not in a good place financially to have a child may choose to have an abortion, but even just the cost of traveling out of state could be enough to financially devastate someone. If abortion is not available everywhere, then people of color and marginalized communities will be impacted the most.
On May 12, 2022, about a hundred students at Grants Pass High School walked out of their sixth period classes in protest of Roe v. Wade being overturned. A moment of silence was held, some people made posters for the event, and students took turns speaking to the group about their own experiences or giving statements regarding the topic. The meeting was, overall, peaceful and nondisruptive, and students returned to classes when the bell rang. However, some students have expressed displeasure at how the school has handled the walkout. In an attempt to please community members following the events of GPHS’ previous walkout, the administrators have been strict regarding consequences for students participating in the event.
In Nov. 2021, GPHS students organized a walkout in protest of the local “I Resolve” movement, but a counter-protest was held by local religious groups, and violence quickly broke out, leading to three arrests. To prevent such a result from occurring again, the recent walkout was held on Mel Ingram field, preventing any outside intervention from off-campus protesters. Additionally, minutes before the walkout, Principal Thompson made a school-wide announcement warning students of “disciplinary action” being taken against participants. No information was given regarding the severity of said disciplinary action, and teachers were instructed to take down the names of students who left class. In the following days, participants received detention sentences for “unexcused absences”, despite the school’s previous apathy concerning major attendance issues. Several students have reported to The Scroll having unexcused absences in the double digits that have yet to receive any punishment, but every student who was absent on May 12 during sixth period received after-school detention, leading some to wonder if the punishment is a restriction on political speech at school.
Deenie Bulyalert, one of the two main organizers of the walkout, gave a statement to The Scroll regarding Roe v. Wade and the walkout. “It’s hard to comment on a topic like this when the world thinks you’re too young to have a decision. If Roe v. Wade is overturned, then abortions don’t stop. They become unsafe,” they commented. She also added, “ Thousands of people die worldwide due to unsafe abortions, and I don’t think it’s that hard to understand that abortion is a healthcare right. It shouldn’t be politicized, and the fight for this right isn’t going to stop until we have our own autonomy.” Stephanie Eminowicz, the event’s other primary organizer, also commented to The Scroll: “From the beginning of this argument, none of us said we were pro-abortion. We have always said we are pro-choice because we want any and everyone to have that choice, and taking it away puts everyone in an unsafe environment. People will die seeking healthcare. We are protecting lives and each other; people need to see that, and if they don’t understand that, they are part of the problem.”
As the fight to protect women’s reproductive rights reaches small communities and continues to permeate throughout the nation, voices on both sides of the argument grow louder. Dobbs v. Jackson Women’s Health Organization is set to be decided within the next two months. Until then, farewell and good luck in the hardships to come.
