(WFXR) — On Monday, Politico published a draft of a majority opinion from the Supreme Court — which was authenticated by Chief Justice John Roberts Jr. — involving Roe v. Wade, which protects the federal right to abortion.
WFXR News’ Amanda Kenney spoke with three legal and political experts around southwest and central Virginia about the possibility of overturning this landmark decision from 1973, as well as the ripple effect it could have.
According to Dr. Allison Yankle, an assistant professor of political science at Radford University, the Supreme Court’s draft opinion signed by Justice Samuel Alito is just that — a draft.
“It’s not the final version of the opinion that we’ll see in June, or at least it might not be the final version of the opinion we’ll see in June,” explained Dr. Yankle.
“There are a number of possible things that can happen between now and the release of the final judgment,” said Morse Tan, the dean of the Liberty University School of Law.
Tan says this leaked draft can lead to consequences for the Supreme Court.
“It really compromises the process that the justices are going into and subjects them potentially to external pressures that would have not been there otherwise,” he said.
However, if the draft opinion doesn’t change, the Supreme Court will overturn Roe v. Wade.
On top of that, Dr. Yankle says this would also overturn the 1992 decision in Planned Parenthood v. Casey, which not only affirmed Roe v. Wade, but also also established what’s called “undue burden,” preventing a a state restriction from creating substantial obstacles for women seeking an abortion.
“And the court is finding that not only is this idea of is there an undue burden really not necessary, but this idea of a right to privacy to receive an abortion is not constitutional, that the court made the wrong decision in Roe v. Wade when they voted 7-2 to extend that right across the United States,” Dr. Yankle said.
“What they’re saying is the Bill of Rights, the first 10 amendments of the Constitution, lay out different rights that we have, but there is no explicit discussion of reproductive freedom or a general right to privacy,” explained Dr. Todd Peppers, a political science professor at Roanoke College.
Dr. Peppers says some justices believe that if it’s not specifically written into the Constitution, then the federal Bill of Rights has nothing to say about it.
“Historically in this country, the states have been considered to be in the driver’s seat when it comes to issues of public health or morality or police powers, and that this general right to privacy should be protected by the states, not the federal government,” said Dr. Peppers. “That’s sort of what with argument is over is, you know, we have this grand blueprint of government. It’s been around well over 200 years, and we’re still having disagreements about what that blueprint says.”
That’s exactly what Tan says Alito spells out in the draft leaked out on Monday, May 2.
“If this opinion stays as it is, he is kicking it back to the states, to the people and to the people’s representatives in each state,” the Lynchburg law school dean told WFXR News.
According to Tan, Alito believes the Supreme Court got it wrong on Roe v. Wade in 1973.
“Something that was criminalized with jail time, with fines, could be somehow magically turned into a constitutional right. Justice Alito doesn’t buy that, and he spends a lot of time debunking that theme,” Tan said.
Meanwhile, Dr. Yankle says states aren’t wasting any time either.
“We’re already seeing aspects of some states moving to protect the right to abortion, even if Roe is repealed, and while you have others that are saying ‘what can we prepare in order to restrict abortions or potentially make it illegal?’”
However, all of the experts with whom WFXR News spoke agree that drafts are written and re-written. In addition, some justices change their mind, so Americans probably won’t know the outcome until June.