Explained: What is Roe v. Wade, which the US Supreme Court seems poised to overturn — and why is it significant?

It was unclear which way the opinion of the ninth justice, Chief Justice John Roberts, would go, but a possible dissent by him would still leave the conservative block of the court with a 5-4 majority.

What is Roe v. Wade?

The case is sometimes referred to simply as “Roe”, the listed name of the 22-year-old plaintiff, Norma McCorvey. ‘Wade’ was the defendant Henry Wade, the Dallas County (Texas) district attorney at the time.

Roe struck down laws that made abortion illegal in several states, and ruled that abortion would be allowed up to the point of foetal viability, that is, the time after which a foetus can survive outside the womb.

Foetal viability was around 28 weeks (7 months) at the time of the Roe judgment; experts now agree that advances in medicine have brought the threshold down to 23 or 24 weeks (6 months or a little less), and newer studies show this could be further pegged at 22 weeks. An average pregnancy lasts about 40 weeks.

Foetal viability is often seen as the point at which the rights of the woman can be separated from the rights of the unborn foetus. The length of a pregnancy is commonly calculated from the start of a person’s most recent menstrual period. Since many people identify pregnancy only after the sixth week, pre-viability timelines leave women with very little time and opportunity to make a decision to abort.

Abortion laws across the world rely on this metric but those opposing abortions argue that this is an arbitrary timeframe that legislation and the court in Roe adopted.

In the draft opinion obtained by Politico, Alito has rejected Roe as “egregiously wrong from the start”, and held that both Roe and ‘Casey’ — another landmark abortion judgment of the court from 1992 that reaffirmed the central tenet of Roe, that women have the right to terminate pregnancies up to the point of foetal viability — “must be overruled”.

According to the majority opinion quoted by Politico, “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives”.

Roe’s “survey of history ranged from the constitutionally irrelevant to the plainly incorrect,” its reasoning was “exceptionally weak,” and the decision has had “damaging consequences”, the draft ruling says, according to Politico.

“The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions,” Alito has written.

What is the Mississippi law?

In 2018, the Republican-majority legislature of the state of Mississippi banned most abortions after 15 weeks — much before foetal viability, and sooner than was allowed by Roe — throwing a direct challenge to the 1973 judgment.

The then last remaining abortion clinic in the state, Jackson Women’s Health Organisation, which provided abortion services up to 16 weeks of pregnancy, challenged the law, and in November that year, US District Judge Carlton Reeves struck it down, ruling that it “unequivocally” violated the constitutional rights of women.

On March 19, 2019, then Republican Governor Phil Bryant signed the so-called “heartbeat” abortion law, an even more restrictive measure that banned most abortions once foetal cardiac activity could be detected — which is about six weeks. Bryant challenged the opponents of the law to sue: “If they do not believe in the sanctity of life, these that are in organisations like Planned Parenthood, we will have to fight that fight. But it is worth it,” The Associated Press reported at the time.

The heartbeat law said that physicians who performed an abortion after a foetal heartbeat was detected could have their medical licences revoked. The law made no exceptions for pregnancies caused by rape or incest.

This law too was blocked by a district judge, and in February 2020, the 5th Circuit Court of Appeals in New Orleans agreed with the decision. In December 2019, the Circuit had also kept in place the block on the other — 2018 — law.

When the 2018 law — which banned abortion if “the probable gestational age of the unborn human” was determined to be more than 15 weeks, except in cases of medical emergencies or “a severe fetal abnormality” — reached the Supreme Court, there were indications in the hearings in December 2021 that the bench was likely to uphold it.

A decision in the matter was expected in June or July 2022. The 98-page leaked first draft of the court’s decision is not final yet. The draft includes a notation that it was circulated among the justices on February 10, the Politico report said.

A crowd of people gather outside the Supreme Court, Monday night, May 2, 2022 in Washington. (AP Photo/Alex Brandon)

Why is the decision of the Supreme Court important?

The issue of abortion has sharply split opinion among conservatives and liberals in the US for decades.

Until a few years ago, a challenge to Roe v. Wade would have been unlikely to succeed, but the changes in the character of the Supreme Court following the appointments of conservative Justices Gorsuch, Kavanaugh, and Barrett during the Donald Trump presidency have given rise to a fresh spurt of litigation around the issue.

The clear conservative majority in the Supreme Court has given the conservatives their best chance for decades to overturn Roe.

Should the court confirm Justice Alito’s first draft opinion and overturn Roe, more than half of US states would “likely or almost certainly” ban abortions, The New York Times said, quoting an analysis from the Guttmacher Institute that was updated in April.

Depending on how the court words its final judgment, legal abortion access could “effectively end for those living in much of the American South and Midwest, especially those who are poor”, The NYT report said.

Liberal commentators have predicted “seismic” changes in American society if Roe were to be overturned. It will undoubtedly be a significant decision with ripples around the world as a victory for conservative right wing opinion.

The issue of abortion has sharply split opinion among conservatives and liberals in the US for decades. (AP Photo/Alex Brandon)

What if Roe is overturned?

Since there is no federal law protecting the right to abortion in the US, the overturning of Roe would leave abortion laws entirely up to the states. Conservative states could bring back restrictive laws that prohibited abortions before the Supreme Court set the foetal viability standard in 1973.

The New York Times estimated that legislatures in 22 states would “almost certainly” move to ban or substantially restrict access to abortion, and poorer women would bear the brunt in most cases. The NYT report said that without the protection of Roe, the number of legal abortions in the US could fall by at least 14%, quoting research based on the effects of the closures of abortion clinics in Texas between 2013 and 2016.

Activists and progressive politicians have said that the availability of clinics, insurance payouts, are crucial issues that form part of the struggle of many women even with the backing of Roe. If this legal backing goes, access could become even harder.

Overruling an earlier court ruling is not uncommon, but a school of thought argues that legal propriety requires that a valid precedent upheld by the court earlier must be overruled only if circumstances have considerably changed.

Is a leak from the Supreme Court such as this unusual?

“No draft decision in the modern history of the court has been disclosed publicly while a case was still pending,” the Politico report said.

Speculation on the source of the leak went from it being a clerk for a liberal justice seeking to bring public pressure on the court before it made a final decision, to conservatives orchestrating it so as to “soften the blow” early.

Jonathan Peters, a professor of media law at the University of Georgia, posted a thread on Twitter saying leaks such this one were not that unusual after all.

Its recorded history of leaks dates back to mid-19th century. Some leaks have commented on a decision after its release. Others have provided accounts of personal relationships/conflicts among the justices. And, yes, some opinions have leaked before release.

— Jonathan Peters (@jonathanwpeters) May 3, 2022

The court’s “recorded history of leaks dates back to mid-19th century. Some leaks have commented on a decision after its release. Others have provided accounts of personal relationships/conflicts among the justices. And, yes, some opinions have leaked before release,” Prof Peters tweeted.

He included in the list the 1852 case ‘Pennsylvania v. Wheeling and Belmont Bridge Company’, the outcome of which was reported by the New York Tribune “ten days before the Court handed down its decision”; leaks about Roe v. Wade in the 1970s; and, most recently, CBS’s Jan Crawford’s report in 2012 that “Chief Justice Roberts voted to strike down the heart of the Affordable Care Act before changing his mind and siding with the court’s liberal bloc”.

All of which is to say: Supreme Court leaks are rare and remarkable, but they are not unprecedented. I’ve done some research on this, and I’m just sharing for anyone who might be interested in this wider context. /end

— Jonathan Peters (@jonathanwpeters) May 3, 2022

In conclusion, Prof Peters said, “Supreme Court leaks are rare and remarkable, but they are not unprecedented. I’ve done some research on this, and I’m just sharing for anyone who might be interested in this wider context.”

In India, elsewhere

India’s Medical Termination of Pregnancy Act, 1971 allows abortion until 20 weeks of pregnancy. Through an amendment in 2021, the ceiling for abortions was raised to 24 weeks, but only for special categories of pregnant women such as rape or incest survivors, that too, with the approval of two registered doctors. In case of foetal disability, there is no limit to the timeline for abortion, but that is allowed by a medical board of specialist doctors set up by the governments of states and union territories.

In approximately 16 countries around the world, abortion is entirely prohibited and even criminalised. But several Catholic majority nations such as Ireland and Mexico have decriminalised abortion in the last decade.

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