A leaked draft of a US Supreme Court opinion indicating that the court is preparing to overturn has sent federal lawmakers into a frenzy. Senate Majority Leader Chuck Schumer is pushing for a floor vote on a bill that would codify the right to abortion into law, while his Republican counterpart, Senate Minority leader Mitch McConnell, told USA Today that a federal abortion ban is "possible."
The current case, Dobbs v. Jackson Women's Health Organization, hinges on the constitutionality of a Mississippi abortion law. In the draft, Associate Justice Samuel Alito contends that the US Constitution "makes no reference to abortion and no such right is implicitly protected by any constitutional provision."
The, in part, on the due process clause of the 14th Amendment, which Associate Justice Harry Blackmun wrote included the "right to privacy, including a woman's qualified right to terminate her pregnancy."
Alito, however, wrote that Blackmun's majority opinion in Roe "was egregiously wrong from the start."
The draft, which Chief Justice John Roberts confirmed is authentic, isn't a final opinion. The published opinion isn't expected until mid-to-late June, and justices still have an opportunity to change their minds. For now, the right to an abortion is still constitutionally protected, although several Republican-led states have passed or introduced legislation severely curtailing it.
Some have enacted near-total bans. Notably, the Supreme Court has allowed the Texas law banning abortion after six weeks to remain in place since it took effect in September.
Here's what you need to know about Dobbs v. Jackson Women's Health, including when the judges could issue their ruling and what the opinion could mean for abortion in the US.
What is Roe v. Wade?
Roe v. Wade is a landmark Supreme Court ruling that determined a woman has a constitutional right to choose to have an abortion without undue government interference.
A pregnant single woman, using the pseudonym Jane Roe, brought a class action suit challenging a Texas law banning abortion except in cases in which the mother's life was at risk.
In an opinion written by Justice Harry Blackmun, the court determined that laws like the Texas ban violated, among other rights, the due process clause of the 14th Amendment, which protects the "right to privacy, including a woman's qualified right to terminate her pregnancy."
Later cases affirmed the right to an abortion within the first 24 weeks of pregnancy, after which time a fetus is considered viable outside the womb. In 1992's Planned Parenthood v. Casey, the court further determined laws could not impose an "undue burden" on reproductive rights.
What is the Mississippi abortion law under consideration?
The court is preparing to issue an official ruling on Dobbs v. Jackson Women's Health Organization, which addresses the constitutionality of a 2018 Mississippi law banning almost all abortions after the first 15 weeks of pregnancy. That's much shorter than the timeline established by Roe v Wade.
The Gestational Age Act, as the measure is known, makes exceptions in cases of a medical emergency or severe fetal abnormality, but not for pregnancies resulting from rape or incest.
After Republican Gov. Phil Bryant signed it into law, Jackson Women's Health Organization, the last state-licensed abortion clinic in Mississippi, challenged the measure almost immediately.
In November 2018, the US District Court for the Southern District of Mississippi ruled in the clinic's favor and, a little more than a year later, the Fifth Circuit unanimously upheld the lower court's decision.
"States may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman's right," the Fifth Circuit said, "but they may not ban abortions."
In October 2021, Mississippi brought the case before the Supreme Court, which agreed to hear arguments.
When will the Supreme Court issue its final ruling?
The Supreme Court will often hold major decisions until closer to when it recesses for the summer: The ruling in Brown v. Board of Education, which determined segregation in public schools was unconstitutional, was announced on May 17, 1954. Obergefell v. Hodges, which federally recognized same-sex marriage, was made public on June 26, 2015.
So a final decision in Dobbs could come in mid-to-late June as the court's summer recess begins.
It's possible the justices will release their ruling on Dobbs at any moment. But the disclosure that the leaked opinion was not final means there are still some points to hash out, possibly in both the majority and dissenting opinions.
Does the leaked draft mean the Supreme Court will overturn Roe v. Wade?
In the leaked draft, which Chief Justice John Roberts confirmed is authentic, Alito wrote, "We hold that Roe and Casey must be overruled."
But the draft is not final and dissenting opinions were not released as part of the leak. The justices still have an opportunity to change their minds -- and the text -- before issuing an official decision. Still, it suggests that five decades of a woman's right to choose will soon be overturned, radically redefining reproductive rights in the US.
If the court overturns Roe, would abortion be illegal in the US?
Striking down Roe would end federal protections for abortion, returning the decision to individual states. While that would not make abortion illegal nationwide, 26 states have laws restricting or banning abortion that would take effect immediately, according to the Guttmacher Institute, a reproductive rights advocacy group.
Some are older measures that have simply been unenforced since 1973, but 13 states have so-called trigger laws that would immediately take effect should Roe be struck down, banning or severely limiting access to abortion within their jurisdictions.
Four states -- Alabama, Louisiana, Tennessee and West Virginia -- have passed amendments explicitly declaring that their state constitution does not secure the right to terminate a pregnancy.
Separately, 16 states and the District of Columbia have passed laws protecting the right to have an abortion in case Roe is overturned.
An interactive Planned Parenthood map indicates the current status of abortion in all 50 states and how access to abortion would likely change in each if Roe v. Wade is overturned.
Who will be most impacted if Roe is overturned?
The Center for Reproductive Rights, which is providing legal counsel to the Jackson Women's Health Organization, said that if Roe was overturned, marginalized groups "will experience the greatest harms." Those groups include Black, Indigenous and other people of color, immigrants, people with disabilities and the economically disadvantaged
In general, women in Republican states, especially those without resources to go elsewhere for services, will be most impacted.
According to a New York Times analysis of research from Middlebury College, University of California at San Francisco and the Guttmacher Institute, 41% percent of women of childbearing age would see their closest abortion clinic close. The average distance they would have to travel to reach one would be almost 280 miles, up from 35 miles now.
Overall, the Times found, the number of legal abortions in the country would fall by at least 13%.
What happens next in Dobbs v. Jackson Women's Health Organization?
The Supreme Court isn't expected to issue a final opinion on Dobbs until mid-to-late June. Roberts, who has confirmed the authenticity of the draft opinion, has ordered an investigation into the leak.
Politico reported that sources "familiar with the court's deliberations" indicate that fellow Republican-appointed justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett had voted with Alito after hearing oral arguments in December.
According to the same person, Poitico reported, the three justices appointed by Democrats -- Stephen Breyer, Sonia Sotomayor and Elena Kagan -- are working on dissenting opinions.
The article didn't indicate how Roberts, who was nominated by Republican President George W. Bush in 2005, would vote.
What are people saying about the case?
Before Roberts confirmed the draft, Mississippi Attorney General Lynn Fitch said in a statement that the state "will let the Supreme Court speak for itself and wait for the Court's official opinion."
The breach also triggered a response from Senate Majority Leader Chuck Schumer, a Democrat from New York. Schumer said he hopes to hold a vote soon to codify the right to an abortion in law.
"This is not an abstract exercise. This is urgent," Schumer tweeted on May 3.
President Joe Biden released a statement saying that he believes a woman's right to choose is "fundamental."
"Roe has been the law of the land for almost 50 years, and basic fairness and the stability of our law demand that it not be overturned," Biden said. "We will be ready when any ruling is issued."
A Washington Post-ABC News poll conducted April 24 to 28 found 54% of Americans think Roe v Wade should be upheld, compared with 28% who believe it should be overturned, nearly a 2-to-1 ratio.
What do legal scholars think of the draft opinion?
Constitutional scholars have been debating the legal merits of the Roe decision since it was issued, with even some who support a woman's right to choose called Blackmun's opinion into question.
Long before becoming a Supreme Court Justice in 1993, the late Ruth Bader Ginsburg wrote in the North Carolina Law Review that the court "ventured too far in the change it ordered and presented an incomplete justification for its action."
"From his view, the only rights guaranteed to Americans are the ones that are deeply rooted in the 18th and 19th centuries," Thai told CNET. "That's very few rights -- and for a very slim group of people."
Constitutional rights recognized in the 18th and 19th centuries "are the floor, not the ceiling," said Thai, whose focus is constitutional law and the Supreme Court. "As liberty and equality have grown, the Constitution has grown, too."
The draft opinion "disregards a lot of what most people in America consider fundamental rights," he added. "Like the right to marry someone of a different race, the right to contraception, to sexual intimacy outside of marriage. The arguments put forward in Roe are the legal bases of a lot of rights many of us assume we have about bodily autonomy."