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Demonstrators outside the US Supreme Court in Washington. Picture: TING SHEN/BLOOMBERG
Demonstrators outside the US Supreme Court in Washington. Picture: TING SHEN/BLOOMBERG

Washington — The bombshell draft US Supreme Court decision suggesting the court may overturn the 1973 Roe versus Wade ruling legalising abortion sent Democrats scrambling on Tuesday, with legislators and activists looking for some way to head off the sweeping social change.

California governor Gavin Newsom said, after Politico reported the draft decision, that his state will propose an amendment in the state’s constitution to “enshrine the right to choose”.

“We can’t trust Scotus to protect the right to abortion, so we’ll do it ourselves,” Newsom said on Twitter, referring to the top court. 

Reuters was not immediately able to confirm the authenticity of the draft opinion. The supreme court and the White House declined to comment.

“Do something, Democrats,” abortion rights protesters chanted in the predawn hours as they rallied outside the court against the decision, which would be a triumph for Republicans who spent decades building the court’s current 6-3 conservative majority.

“If the report is accurate, the supreme court is poised to inflict the greatest restriction of rights in the past fifty years — not just on women but on all Americans,” Congress’s top two Democrats — House of Representatives speaker Nancy Pelosi and Senate majority leader Chuck Schumer — said in a joint statement. “The Republican-appointed justices’ reported votes to overturn Roe versus Wade would go down as an abomination, one of the worst and most damaging decisions in modern history.”

A bill that would have protected the right to abortion nationally died in Congress early in 2022 as Democrats’ razor-thin majority was not enough to overcome Senate rules requiring a supermajority to agree on most legislation.

In the absence of federal action, states have passed a raft of abortion-related laws. Republican-led states have moved swiftly, with new restrictions passed this year in six states. Three Democratic-led states this year have passed measures intended to protect abortion rights.

Abortion is one of the most divisive issues in US politics and has been for nearly half a century. A 2021 poll by the Pew Research Center found that 59% of US adults believe it should be legal in all or most cases, while 39% thought it should be illegal in most or all cases.

Abortion presents a profound moral question. The constitution does not prohibit the citizens of each state from regulating or prohibiting abortion.
Justice Samuel Alito

“Roe was egregiously wrong from the start,” conservative justice Samuel Alito wrote in the draft opinion, which is dated February 10, according to Politico, which posted a copy online.

Based on Alito’s opinion, the court would find that the Roe versus Wade decision that allowed abortions performed before a foetus would be viable outside the womb — between 24 and 28 weeks of pregnancy — was wrongly decided because the US constitution makes no specific mention of abortion rights.

“Abortion presents a profound moral question. The constitution does not prohibit the citizens of each state from regulating or prohibiting abortion,” Alito said, according to the leaked document.

The sweeping nature of the decision raised questions among legal experts and court observers about what other rights established by the court could be overturned. The ruling would be the court’s most sweeping since former president Donald Trump succeeded in naming three justices to the court.

The news broke a little more than six months before midterm elections that will determine if Democrats hold their razor-thin majorities in the US Congress for the next two years of President Joe Biden’s term.

“Congress must pass legislation that codifies Roe versus Wade as the law of the land in this country NOW,” independent senator Bernie Sanders said.

The decision appeared to be based on an oral argument in December on Mississippi’s bid to revive its ban on abortion starting at 15 weeks of pregnancy, a law blocked by lower courts. The Politico report said a court majority was inclined to uphold Mississippi’s abortion ban and that there could be five votes to overturn Roe. An official ruling is expected before the end of June.

Four of the other Republican-appointed justices — Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — voted with Alito in the conference held among the justices, it said.

After an initial vote among the justices following an oral argument, one is assigned the majority opinion and writes a draft. It is then circulated among the justices. At times, in between the initial vote and the ruling being released, the vote alignment can change. A ruling is only final when it is published by the court.

Texas abortion ban

The news of the draft opinion stunned abortion providers.

Andrea Gallegos, executive administrator at Tulsa Women’s Clinic in Oklahoma, had just finished calling about 25 patients to tell them their Tuesday abortion appointments would need to be cancelled because of a soon to be enacted Oklahoma law modelled on a highly restrictive Texas abortion ban.

“I can’t say that I’m surprised,” she said. “Now all these other conservative states like Oklahoma are passing the exact same legislation that Texas did, I have to say I became less optimistic and way more scared for what the future of Roe looks like.”

The Roe versus Wade decision recognised that the right to personal privacy under the US constitution protects a woman’s ability to terminate her pregnancy. Christian conservatives and many Republican officeholders have long sought to overturn it.

If Roe is overturned, abortion is likely to remain legal in liberal states. More than a dozen states have laws protecting abortion rights. Numerous Republican-led states have passed various abortion restrictions in defiance of the Roe precedent in recent years.

The anti-abortion group the Susan B Anthony List welcomed the news. “If Roe is indeed overturned, our job will be to build consensus for the strongest protections possible for unborn children and women in every legislature,” its president, Marjorie Dannenfelser, said in a statement.



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