Fate of Roe v. Wade

Draft opinion of abortion vote  reverberates in California

The U.S. Supreme Court has expressed its intention to strike down Roe v. Wade, the landmark abortion rights case, according to a draft opinion leaked this week. 

The unprecedented leak, first obtained by POLITICO, reverberated around the nation, leading anti-abortion advocates to cautiously celebrate while pro-choice supporters warned women could die if the opinion is formalized. 

It’s worth noting this is a draft opinion authored by Justice Samual Alito, considered to be a more conservative voice on the bench, in February — meaning justices could have already tweaked the opinion or changed how they would vote. 

Opinions — which are the court’s decisions on a case typically including lengthy writings about history and law — are not final until a formal opinion is handed down, and drafts are often circulated as deliberations occur. Opinions are issued before the final day of the court’s term.  They typically are announced in June.

Still, the leak was unprecedented and offered the world an insiders’ look at a direction the nation’s highest court has, at the very least, considered when it comes to abortion access. 

The opinion said both Roe v. Wade and Planned Parenthood v. Casey (a case that came nearly 20 years later that reaffirmed Roe) should be overruled. It argued Roe v. Wade was “egregiously wrong from the start” with “exceptionally weak” reasoning and “damning” consequences. 

“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,” the opinion said. 

“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” the opinion said. 

The Supreme Court has verified the authenticity of the draft opinion published by POLITICO, and Chief Justice John Roberts ordered an investigation into how it was leaked. 

“To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed,” Justice Roberts said Tuesday morning. “The work of the Court will not be affected in any way.” 

According to POLITICO, Justices Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas, all appointed by Republican presidents, sided with Justice Alito’s opinion. 

If the draft opinion, or a similar opinion, is in fact handed down by the Supreme Court, how could it impact California? 

Should the Supreme Court strike down Roe v. Wade, 26 states would ban or greatly restrict abortion through trigger clauses already in place or indications they would enact restrictions, according to the Guttmacher Institute, a pro-choice research organization. 

In California, access to abortion is unlikely to change, but it could see an influx of women coming into the state for such services from places where abortion would be banned, such as nearby Arizona. 

The Guttmacher Institute estimated California could see a nearly 3,000% increase in women whose nearest abortion provider would be in California. 

“The ability to get an abortion will depend on where you live and how much money you have,” Dr. Jenna Tosh, president and CEO of Planned Parenthood Central Coast, said in a statement provided to the News-Press. 

“We will never stop fighting until all people have the rights and the ability to make decisions that are best for them, their family and their future,” Dr. Tosh continued. “To Californians and people who may seek care here, Planned Parenthood’s doors will remain open. And we will do everything we can to continue to provide abortion services to all who need them. Abortion remains legal, and we will fight to make sure it stays that way.” 

And although California already has a right to privacy provision in its state constitution, Gov. Gavin Newsom and legislative leaders said they would push for a constitutional amendment to further protect abortion access in the Golden State. 

“California will not stand idly by as women across America are stripped of their rights and the progress so many have fought for gets erased,” Gov. Newsom, Senate President Pro Tempore Toni Atkins and Assembly Speaker Anthony Rendon said. “We will fight. California is proposing an amendment to enshrine the right to choose in our state constitution so that there is no doubt as to the right to abortion in this state. We know we can’t trust the Supreme Court to protect reproductive rights, so California will build a firewall around this right in our state constitution. Women will remain protected here.” 

In a press conference Tuesday, Sen. Atkins, D-San Diego, said: “If the Supreme Court of the United States won’t protect our bodily autonomy, California will make sure our constitution leaves no room for confusion.” 

A July 2021 survey from the Public Policy Institute of California found an overwhelming majority of adults in California did not want the Supreme Court to overturn Roe v. Wade. 

The poll found 77% of adults and 79% of likely voters did not want the Supreme Court to overrule the landmark case. Only 20% of likely voters said the Supreme Court should strike it. 

“A strong majority of Americans support the constitutional right to abortion and do not want to see Roe overturned,” Dr. Tosh said. “Most Americans believe that all people should have the freedom and power to control their own bodies and lives.” 

Meanwhile, Republicans and anti-abortion advocates celebrated the news of the draft opinion.

“Justice Alito’s draft decision is a hopeful sign that the Supreme Court might be poised to correct its disastrous Roe v. Wade ruling that fabricated a ‘right’ to abortion violence in the Constitution,” California Right to Life director of outreach Mary Rose Short told the News-Press. “As Alito so thoroughly explains, there is not and has never been a constitutional right to kill unborn human beings.” 

“In retaliation for the fall of Roe, California politicians are working on a series of bills to use taxpayer dollars to reinforce and expand the abortion industry,” Ms. Short continued. “As the people of other states pass legislation to protect the vulnerable, Gov. Newsom and the California Legislature are making abortion violence a hallmark of our state.” 

The draft has underscored existing partisan fissures in Congress as well as launched speculation about the motives for the extraordinary leak. 

President Joe Biden said if the high court does overturn Roe v. Wade, lawmakers “at all levels of government” will be tasked with deciding abortion access.

“At the federal level, we will need more pro-choice senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law,” President Biden said. 

U.S. Rep. Salud Carbajal, D-Santa Barbara, said Monday was a “devastating day for America’s rule of law.” 

“A decision that overturns a half-century of legal precedent will be a betrayal of our Constitution and a betrayal of millions of women who count on its protections to retain control of their own bodies and choices,” Rep. Carbajal said. “A majority of Americans over multiple generations have supported a woman’s right to choose. Five justices cannot change that. This is a call to action for all who believe in women’s reproductive rights.” 

U.S. Sen. Alex Padilla, D-Calif., called on Congress to codify Roe v. Wade ahead of a Supreme Court opinion. 

“It’s time for Congress to get off the sidelines and protect women’s fundamental right to choose. The draft opinion released last night is an urgent warning of the threat an increasingly far-right Supreme Court poses to women’s rights,” Sen. Padilla said. “We must act now before it is too late.” 

“Make no mistake: the legitimacy of the Supreme Court hangs in the balance,” Sen. Padilla said. 

And Sen. Dianne Feinstein, California’s senior senator, warned of dire consequences if Roe is overturned. 

“Make no mistake, if Roe v. Wade is overturned, women will be harmed and some will die. It happened before Roe became the law of the land, and it will happen again, particularly since this decision will harm low-income and at-risk women more than anyone,” she said. “Generations of women have relied on the protections provided by Roe. This dangerous, ill-conceived opinion must not become the law of the land.” 

But U.S. Rep. Kevin McCarthy, the House Republican leader who represents Bakersfield, joined with other GOP leaders to call for an investigation into how the draft was given to POLITICO while simultaneously calling for a continued push against abortion. 

“Yesterday’s unprecedented leak is an attempt to severely damage the Supreme Court. This clearly coordinated campaign to intimidate and obstruct the justices of the United States Supreme Court, and its independence in our political system, from upholding the Constitution must be immediately investigated by the court,” the Republicans said. “House Republicans are committed to upholding the sanctity of life, and we will continue to fight to be a voice for the truly voiceless. There is nothing more special, extraordinary, and worth fighting for than the miracle of life.” 

email: kschallhorn@newpress.com