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Is a Post-Roe America Upon Us? What the SCOTUS Leak Means for Abortion and Our Republic

It’s been a historic week for the entirety of the country and, more specifically, for the heated conversation around abortion. Emotions are at an all-time high, yet depending on one’s stance on the controversial, sensitive issue, those emotions are likely defined by despair or hope. Though the chasm between the sides – pro-choice or pro-life – is seemingly widening, most Americans are alarmed by the unprecedented breach of confidence on behalf of whoever leaked the draft opinion from the Supreme Court.

(Image Source)

In short, the majority opinion, written by Justice Samuel Alito, was drafted back in February 2022, but was recently obtained by the media outlet POLITICO, who then published it in an article on Monday, May 2, 2022. The draft exhibits strong language against the original decision that led to Roe v. Wade becoming the law of the land, with Justice Alito stating, "Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences… Roe and Casey have enflamed debate and deepened division." For context, the landmark decision of Roe v. Wade, which guaranteed federal constitutional protections of abortion rights, occurred in 1973 and was followed by Planned Parenthood v. Casey in 1992, which only solidified the right. The draft opinion thus displays a vote to overturn both Roe and Casey, with other Justices Amy Coney Barrett, Brett Kavanaugh, Clarence Thomas, and Neil Gorsuch supporting the opinion, and Justices Elena Kagan, Sonia Sotomayor, and Stephen Breyer dissenting.

From page 65 of the document:

A common misconception surrounding this possible but not yet definite decision is that the strike down of Roe v. Wade would outlaw abortions in every state. That notion, however, is entirely incorrect – yet it is a falsehood that is partly fueling the outrage by those of the pro-choice mindset. While pro-lifers admit to welcoming the idea of making abortion illegal everywhere, the reality is that the overruling of this 49-year-old decision would simply leave abortion rights, or lack thereof, up to the states. After all, opinions on abortion vary significantly from region to region and state to state, so proponents of this potential overruling view this as a Constitutional and reasonable solution to a nuanced issue – a solution that could help to deescalate the growing hostility.

Aside from the abortion debate, the disaster at hand is the fact that the ever-revered, nonpolitical branch of the U.S. government was intentionally undermined and arguably tainted by this leak. Likely motivated by left-leaning politics, many are asserting that it was illegally released in hopes of pressuring – or essentially threatening – justices into modifying their votes. In response, Chief Justice John Roberts called the leaking of the draft a "betrayal" and assured the public that a full investigation into the incident would take place. Further, he said, "Although the document described… is authentic, it does not represent a decision by the Court or the final position of any member on the issues in the case."

Justices from Roe v. Wade decision in 1973. (Library of Congress)

Supreme Court justices in 2022. (Erin Schaff/Pool Photo)

So, what happens from here? Activism from both sides is now ratcheting up as social media is flooded with pro-life and pro-choice slogans and imagery, and people making their views known. One particularly interesting graphic from Sarah Epperson, a self-proclaimed "Queer white Feminist Artist," reads, "People of all genders need and have abortions" – a rather confusing sentiment given that feminists usually deem laws curbing abortion rights as a "War on Women."

Additionally, protests with visibly agitated young people are surfacing in multiple cities across the country. On Tuesday, May 3, 2022, a pro-choice demonstrator even clashed with police during a protest that turned violent.

The coming weeks will prove to be a testing of our country's breaking point, however, a final SCOTUS decision will indeed be made. It will be a decision that either changes the trajectory of America's values on this topic or continues a decades-long legacy of a push for abortion rights – a legacy that many argue is a violation of the Constitution and the convictions of millions, and that others celebrate.

You can read the leaked 98-page opinion draft here.

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