CW / Ainsley Platt
On Tuesday, Politico released the initial draft of the Supreme Court’s decision in the Dobbs v. Jackson Women’s Health case written by Associate Justice Samuel Alito. The draft shows the court initially voting to strike down the landmark 1973 case Roe v. Wade, along with the 1992 decision in Planned Parenthood v. Casey.
The 98-page draft, which was circulated amongst the justices on Feb. 10, 2022, shows that at the time that it was written, at least five of the nine justices had voted to overturn the precedent set by Roe v. Wade. Justices can change their vote as they deliberate, and the ruling does not become final until it is officially released by the court.
The Roe decision set the precedent that women have a constitutional right to abortion, while Casey upheld the court’s finding that abortion is constitutionally protected.
In his opinion, Alito said that “Roe was egregiously wrong from the start.”
He said that since abortion is not specifically mentioned in the Constitution, the court’s ruling in Roe was flawed and therefore should be struck down. Alito also said unenumerated rights should be based in “this Nation’s history and traditions,” and that abortion does not meet this standard of constitutionality since it was not widely legalized before Roe.
The original Roe opinion was based in the due process clause of the Fourteenth Amendment, with the court finding in their decision that abortion bans infringed upon a person’s right to privacy. The due process clause was also cited in landmark cases such as Obergefell v. Hodges which legalized gay marriage and Loving v. Virginia which legalized interracial marriage.
According to a survey released by the Pew Research Center in 2021, nearly six in ten Americans say abortion should be legal in “all or most cases.”
Alabama and states in a post-Roe world
If Roe and Casey are overturned, the power to regulate abortion access will return to the states.
Many Republican-majority state legislatures have passed increasingly strict abortion regulations that could go into effect if the court strikes down these cases. According to NPR, vast areas of the country will become “abortion deserts” should that happen.
According to the Guttmacher Institute, several states already have ‘trigger laws’ in place that would make abortion completely illegal immediately or soon after the reversal of Roe. Others have anti-abortion provisions in their state constitutions or have passed restrictive laws that were subsequently put on hold by judges before they went into effect and therefore remain unenforced.
Many of the states with existing laws or constitutional provisions directly border Alabama, which could make it even more difficult for Alabamians to find abortion care.
Mississippi, Tennessee and Georgia all have either trigger, near-total or six-week bans in place while Florida has a 15-week ban that is set to go into effect in July.
Alabama has passed similar laws in recent years.
The Human Life Protection Act of 2019 could go into effect if Roe is overturned. The act is a total ban on abortion, including in cases of rape and incest. The only exception is for “serious health risk” to the mother and ectopic pregnancies, which can be life-threatening. Abortion providers could be charged with a Class A felony, with a maximum sentence of life imprisonment.
The act was put on hold by U.S. District Judge Myron Thompson in October 2019 for violating Roe and Casey. Overturning the precedent of these two cases could end the hold and effectively ban nearly all abortions in Alabama.
Eric Johnston, an author of the Human Life Protection Act and president of the Alabama Pro-Life Coalition, said in a 2019 interview with NPR that the goal of the law was to eventually have legal challenges brought before the Supreme Court to overturn Roe.
Alabama is one of the few states that has pre-Roe abortion restrictions.
Alabama’s pre-Roe statute was first enacted in 1852 and banned abortion while allowing exceptions to preserve a woman’s life, but the penalties were less severe than present day. The 1852 law stipulates that abortion providers who violate the law will be subject to up to a $1,000 fine and up to one year in prison.
It is likely that the 2019 law would go into effect if Roe is overturned.
Effects on reproductive health and mortality rates
The state of Alabama is already considered to be an abortion desert, with only three abortion clinics between Huntsville, Tuscaloosa and Birmingham.
According to Time, the West Alabama Women’s Center in Tuscaloosa in recent months has seen a massive influx of patients traveling from Texas, Mississippi and Louisiana due to increasingly strict abortion regulations in these states. It is one of the few clinics in the four states able to book appointments within a week.
Many reproductive health experts say overturning Roe will lead to more deaths from pregnancy, especially within marginalized communities.
According to NPR, the U.S. has one of the highest mortality rates for pregnant women in the developed world.
Abortion bans widen the disparity in healthcare quality for women of color compared to white women according to an article by the Center for Reproductive Rights.
The Alabama Department of Public Health in 2019 reported 68% of those who received abortions in the state that year were non-white. People in their 20saccounted for just over 60% of abortions in Alabama, and over half of these people had at least one year of post-high school education.
Of all abortions performed in Alabama in 2019, nearly half were at the West Alabama Women’s Center in Tuscaloosa.
For pregnant people with no paid sick leave, insurance or disposable income, traveling across state lines to get an abortion can be difficult.
The state with enshrined constitutional abortion protections nearest to Alabama is Illinois. The closest Illinois abortion provider is over 500 miles away from Tuscaloosa.
Multiple major media outlets published articles saying the court seemed likely to overturn Roe following oral arguments in the Dobbs case in December 2021.
The draft decision, while authentic, is not the final decision of the court, said Chief Justice John Roberts in a statement released Tuesday. The court is expected to hand down its official ruling by the end of June.