Draft Supreme Court opinion forces Americans to confront a nation without Roe vs. Wade

A draft Supreme Court opinion overturning Roe vs. Wade sent shock waves through the judicial and political systems Tuesday as Americans prepared for the likely end of nearly five decades of federal legal protection for women seeking abortions.


A draft Supreme Court opinion overturning Roe vs. Wade sent shock waves through the judicial and political systems Tuesday as Americans prepared for the likely end of nearly five decades of federal legal protection for women seeking abortions.

President Biden said ending the right to abortion access, if and when the court issues an official ruling in the next two months, would mark a “fundamental shift,” calling it a potentially “radical decision” that could undermine other civil rights.

Republicans celebrated what Sen. Ted Cruz (R-Texas) called “the right outcome” while decrying the unprecedented leak as an attack on the conservative court.


“Roe vs. Wade was wrong the day it was decided,” Cruz said. “It was seven unelected lawyers who declared to the American people that the voters no longer have the right to make decisions about abortion.”

President Biden, averse to the culture wars and elected in part on a promise to ease political divisions, may see his presidency defined by the Supreme Court’s overturning of Roe vs. Wade — a historic ruling with huge political and practical implications.

May 3, 2022

In confirming the authenticity of the draft, which was made public Monday night, the Supreme Court said the opinion by Justice Samuel A. Alito Jr. did not “represent a decision by the Court or the final position of any member on the issues in the case.” Chief Justice John G. Roberts Jr. added that he had ordered an investigation into how the draft got into the hands of reporters at Politico.

Most legal and political analysts believe the court will follow through on overturning Roe vs. Wade, an action that has been predicted since former President Trump appointed three justices from a list of nominees compiled by the conservative Federalist Society.

Even so, the unusual nature of the leaked opinion left the nation in limbo, with political parties plotting responses and the court facing uncomfortable questions about its ability to remain above partisan politics.

The draft decision’s publication comes as Democrats have been bruised politically by inflation, the persistence of the COVID-19 pandemic and historical midterm election headwinds facing the party in control of the presidency during its first term.

Two people hug as another person stands behind them.
Two women embrace during a protest outside the Supreme Court on Tuesday.
(Kent Nishimura / Los Angeles Times)

On Tuesday, they seized on a potential opening in the fight over abortion rights, saying the draft highlighted the importance of retaining control of the Senate and House and raised concerns about the Supreme Court’s willingness to whittle away other hard-earned rights.


“It goes far beyond the concern of whether or not there is the right to choose,” Biden told reporters. “It goes to other basic rights: the right to marry, the right to determine a whole range of things.”

Vice President Kamala Harris said in a statement that “Republican legislators in states across the country are weaponizing the use of the law against women.”

“This is the time to fight for women and for our country with everything we have,” she added.

Senate Majority Leader Charles E. Schumer (D-N.Y.) promised on Twitter to hold a vote on legislation to codify Roe. “This is not an abstract exercise,” he tweeted. “This is urgent.”

Legal scholars and political scientists point to major missteps at the start which left the Roe vs. Wade decision vulnerable.

May 3, 2022

The prospects for such a law are dim. The House passed a bill largely along party lines in September that would have done that. But in February, it received only 46 votes in the Senate when it needed 60 to clear the chamber’s filibuster rules.

It is unclear whether abortion rights will overtake concerns about rising inflation and other economic issues that normally dominate elections, especially in the midterms. Democrats hope their base voters will be motivated, just as conservatives have turned out for years over their opposition to legalized abortion.


Republicans, meanwhile, focused largely on the extraordinary nature of the leak and called on Roberts and the Justice Department to investigate. They largely avoided discussing the substance of the opinion, which would jettison federal legal protections for abortion that polls show are supported by a majority of Americans. A Washington Post-ABC News poll taken last week said Americans favor keeping Roe by a 54%-to-28% margin.

Senate Minority Leader Mitch McConnell (R-Ky.) described the leak as an effort to intimidate the court and called for the Justice Department to get involved in identifying the source. Other Republicans sought to paint Democrats as “abortion extremists,” with Republican National Committee Chairwoman Ronna McDaniel charging that Biden and his party are “pushing taxpayer funded, on-demand and unlimited abortion up until the moment of birth and after.”

Ordinary Americans were left to wait and wonder how the eventual ruling would affect them. Ending Roe would probably mean it would be up to each state to regulate or restrict abortion.

Police officers stand in the foreground as a huge crowd stands behind a metal barricade in the back.
Police officers stand on the plaza at the Supreme Court on Tuesday.
(Kent Nishimura / Los Angeles Times)

Many states have laws on the books that would end legalized abortion when Roe is overturned. Some have abortion rights guarantees in their laws or constitutions. Others will face bruising battles as lawmakers clash over whether to limit abortion access.

Roberts, a conservative who has tried to steer the court toward a more incremental approach on a host of issues, in a statement Tuesday seemed most concerned with protecting the legitimacy of the institution, which faced renewed calls for expansion from liberal politicians and activists who rallied outside the court Tuesday afternoon waving signs with wire hangers and chanting, “Four more seats.”


“To the extent this betrayal of the confidences of the court was intended to undermine the integrity of our operations, it will not succeed,” Roberts said. “The work of the court will not be affected.”

The case at issue stems from a Mississippi law that banned abortion after 15 weeks of pregnancy. The court’s liberals are certain to vote to strike down the ban. Five conservative justices indicated at oral arguments in December that they were ready to use the Mississippi case to overturn Roe. Roberts has seemed interested in steering a more moderate path: upholding the 15-week ban and not throwing out 49 years of case law.