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An attendee at an abortion rights rally holds a sign outside the Idaho Capitol on May 14. The U.S. Supreme CourtÂ’s reversal of Roe v. Wade and Planned Parenthood v. Casey, two landmark abortion cases, triggers a law in Idaho that bans most abortions.
Leaked Supreme Court document indicates emergency abortion protection in Idaho
A draft opinion mistakenly posted to the Supreme Court’s website on Wednesday indicated the justices plan to allow for emergency abortions in Idaho and to dismiss Boise’s appeal. The court later released a statement saying no final decision has been issued, but if the leaked decision holds, it could be a sign conservatives are seeing the need to moderate on abortion.
This doesn’t mean abortion will be federally legal again. By dismissing the case, the justices are punting on the question, but it does mean women in Idaho whose health may be threatened by pregnancy-related issues can get an abortion. The case will not affect other states that have implemented limits or bans on abortion care.
Abortion-related leaks are becoming a pattern. The court’s decision in the case that overturned Roe v. Wade and removed federal abortion protections was also leaked early in 2022 (also an election year), to Politico in that instance. Could it could be a symptom of an increasingly politicized court? Leaking an inflammatory opinion may help politicians rally their bases in the runup to Election Day.
We’re watching for how this decision plays into the rhetoric around abortion at tonight’s presidential debate, and whether it has a measurable effect in November.
US Supreme Court upends Roe v. Wade
The justices have spoken. After weeks of speculation following the leak of a draft opinion in early May, the highest court in the land has reversed the landmark Roe vs. Wade ruling that had legalized abortion in 1973.
“The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives,” the decision read.
Background. The Supreme Court ruling is the culmination of a decades-long project by the Republican Party and conservative lobbyists to undo Roe and its affirmation in the 1992 Planned Parenthood v. Casey case, which said that states cannot enforce laws that place an “undue burden” on women seeking abortions.
Why now? After Mississippi enacted a law banning abortions in most cases in 2018, the state’s sole remaining abortion clinic took the case to court, saying it violated the premise of Roe v. Wade. The initial ban was blocked by a federal judge before reaching the Supreme Court.
Trump’s court. The conservative majority that overturned the half-century-old precedent on abortion law will be one of Trump’s most enduring legacies. On the campaign trail in 2015 – and hoping to woo Evangelical voters – Donald Trump vowed to appoint Supreme Court justices who would overturn Roe. Unsurprisingly, all three of Trump’s conservative appointees – Justice Neil Gorsuch, Justice Brett Kavanaugh, and Justice Amy Coney Barrett – voted in favor of gutting the law.
The ruling will now kick off an ugly battle within states over abortion rights. While women living in Democratic states – including New York, California, and Illinois – will continue to have access to safe and legal abortions, women in the South and Midwest could have to travel hundreds or thousands of miles to terminate pregnancies. Burdened by financial and family commitments, many women won’t be able to afford to take time off work to travel over state lines for the procedure – a process that can take several days due to onerous state laws.
Already, 13 states have “trigger laws” on the books that will outlaw abortions almost immediately. And the procedure is likely to be outlawed in another dozen states in the near term, pending ongoing legal proceedings.
The regional picture. The timing is remarkable considering that many countries in the Americas – home to some of the most restrictive abortion laws in the world due to the pervasive influence of the Catholic Church – have dramatically liberalized their abortion laws.
The Marea Verde (Green Wave) that swept Latin America in recent years renewed calls for the enhancement of sexual and reproductive freedoms, and the strategy of mass mobilization worked. In Argentina, abortion was legalized in December 2020, marking the first time that women in that country could legally terminate their pregnancies in over a century. Similarly, Mexico’s Supreme Court decriminalized the procedure last fall, giving rise to a host of legal shifts across states, a move recently followed by Colombia's Constitutional Court.
That Green Wave was inspired by Roe, which is now in the past.
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SCOTUS leak on abortion decision: impacts midterms and beyond
Jon Lieber, head of Eurasia Group's coverage of political and policy developments in Washington, discusses what the abortion ruling mean for US politics.
What does the abortion ruling mean for US politics?
I'm down here at the Supreme Court where word leaked out last night that the court has a draft opinion that likely has the majority of votes to overturn Roe v. Wade, which is the 50 year old precedent that prevents states from imposing draconian bans on abortion. Democratic states and Republican states have been preparing for this to happen. Republicans have been rushing as quick as they can to put in place new abortion bans, while Democrat states have been enshrining abortion protections in their law, in anticipation of this decision.
What's unusual is that the decision leaked out. It wasn't released through normal channels. So while everyone knows this is coming, it's not yet the law of the land. And there may still be changes to the draft opinion that could tweak it here or there, in order to attract probably the sixth vote of Chief Justice John Roberts.
Politically, the impacts of this are really unclear. It's a galvanizing issue on both sides. Republicans have a turnout advantage in the midterm elections. Democrats may be able to use this to their advantage, to get more pro-choice voters to show up. But on the other hand, that could cut the other way. Republicans could also galvanize their base by talking about the importance of enshrining this decision into law.
Legislatively, Democrats have almost no options. Their 50th senator, Joe Manchin from West Virginia says he's pro-life and you would require either changes to the filibuster rules or 60 votes overcome them, and that's simply not happening.
This is a major victory for the conservative movement who have worked since the time of Roe v. Wade to put enough judges on the court who had overturned the decision. And now you're going to see years and years of this being litigated at the state level, at the ballot box. And importantly, Democrats working to overturn the 6-3 conservative majority, and try to get a Democrat appointed majority back in the court, so they can undo this decision. This is likely to continue to be one of the defining issues in US politics for the foreseeable future.
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