This leaked draft decision is addressed Dobbs v. Jackson Women’s Health Organization, a pending Supreme Court case examining the constitutionality of a 15-week abortion ban in Mississippi. In 2018, Mississippi passed a law effectively banning abortions after 15 weeks – undermining a decision that went into effect on Roe vs. Wadewhich states that states cannot prohibit abortion before a fetus is viable outside the womb (more specifically, before 24 weeks).
If the Supreme Court upholds the ruling, people in nearly 23 states could wake up with limited access to abortions or a total ban at night, says Alejandra Caraballo, a trans activist and lawyer with a former Transgender Legal Defense Fund (TLDEF). The good news, though complicated, is that this leaked opinion is still a draft that means abortion is still the law of the land.
What does this leaked draft on abortion rights mean?
“It’s not over yet,” said Mika Fernandez, Vice President for Policy and Strategic Commitment at Lawyers for Good Government (L4GG). The fact that someone is leaking is marginally promising and gives organizers, citizens and lawmakers time to react. “This leaked opinion means that there is time and hope for action or organization, at least before an official statement is made.”
Action and organization may include organizing at Community level to support existing abortion funds and possible defense of the state legislature to protect individual state access to abortion, Fernandez said, stressing that the latter action is critical because of a formal reversal Roe vs. Wade would not make abortion illegal for everyone in the United States. If the draft opinion is published and formalized, abortion rights will be determined solely by individual states, as was the case before 1973, Fernandez said. And according to the Center for Reproductive Rights, there are 23 states where abortion could or should not be banned immediately.
What are the wider implications of this leaked plan?
“This is one of the most unprecedented leaks in the history of the Supreme Court,” said Caraballo. And Caraballo adds that it is not unreasonable to fear for total access to contraceptives or to worry about the possibility of criminalizing abortion. University of Iowa PhD candidate Berkley Conner, who specializes in reproductive justice rhetoric, agrees that existing legislative efforts and rhetoric do not imply that regulations will end in abortions.
It may seem helpful to try to be positive or encouraging and reassure people that birth control will not be illegal, but Conner argues that looking at the bigger picture and the worst-case scenarios is paramount at a time when there is still some time between this leak and a formal decision statement.
“It makes perfect sense to be afraid of accessing reproductive health care needs such as abortion, more immediate and contraception or criminalizing things like miscarriage,” says Conner. “Never before has the United States Supreme Court had such a direct purpose to remove existing rights previously established by the Supreme Court,” Caraballo added.
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