Roe v Wade: what is US abortion case law, could Supreme Court overturn it - and leaked document explained

The Supreme Court’s chief justice has asked for an investigation to be launched into the ‘egregious breach’

The Supreme Court’s chief justice has confirmed that a leaked document suggesting that that nationwide legal right to abortion in US could be overturned is genuine.

Chief Justice Roberts said it does not represent the court’s final decision but has asked the Marshal of the Supreme Court to launch an investigation.

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President Joe Biden has warned that such a legal change would have far-reaching implications.

Mr Biden said in a statement that the “stability of our law” demanded the court did not overturn the 1973 case and that the White House would work to codify the right to abortion into federal law.

News outlet Politico said it received a copy of the draft opinion from a person familiar with the court’s proceedings.

In a 98-page draft opinion, Justice Samuel Alito writes that the 1973 Roe v Wade decision legalising abortion across the US is "egregiously wrong".

If the top American court agrees to the ruling it could make abortion illegal in 22 US states.

What does the leak document say?

The draft opinion runs 98 pages, including a 31-page appendix of historical state abortion laws, and includes 118 footnotes.

Politico published the leaked document in full, quoting Justice Alito as saying: "Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.

"And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division."

Four of the other Republican-appointed justices, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, voted with Alito in the conference held among the justices, the article added.

Neither the Supreme Court nor the White House have commented on the leak - and the justices are not expected to issue a ruling until early July.

The leaked document is marked as a "1st Draft" and was circulated in the court on 10 February, according to Politico.

Could the Supreme Court overturn the abortion law?

If issued as a majority ruling, Justice Alito’s opinion would overturn the right to abortion in the US.

It would lead to individual states banning the procedure altogether, or place more restrictions on it.

After an initial vote among the justices following the oral argument, one is assigned the majority opinion and writes a draft.

It is then circulated among the justices.

A ruling is only final when it is published by the court.

Why might the abortion law be overturned?

The 1973 law is in the court’s sights because it is weighing up a challenge to Mississippi’s ban on abortion after 15 weeks, which the justices heard in December.

The reported threat to Roe v Wade also comes at a time when reproductive rights are being threatened in Republican leaning states around the US.

Several Republican-led states have already passed highly restrictive abortion laws.

What has President Joe Biden said?

In a statement President Joe Biden said “a woman’s right to choose is fundamental” and that his administration is preparing for all outcomes for when the court ultimately rules.

He said: “If the court does overturn Roe, it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose.

“It will fall on voters to elect pro-choice officials this November”.

He added: “We will need more pro-choice senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law.”

Speaking to reporters before boarding Air Force One, President Biden said he hopes “there are not enough votes for it”.

He continued: “It concerns me a great deal that we’re going to, after 50 years, decide a woman does not have a right to choose.

“But even more, equally profound is the rationale used. It would mean that every other decision relating to the notion of privacy is thrown into question.”

How have Americans reacted?

It sparked immediate outcry from Democrats and protests.

Speaker of the House of Representatives Nancy Pelosi and Senate Majority Leader Chuck Schumer, who are both Democrats, issued a joint statement saying that if the report was accurate, the "Supreme Court is poised to inflict the greatest restriction of rights in the past 50 years".

After the Politico story broke, footage posted to social media showed a crowd of protesters gathering outside the Supreme Court waving signs and chanting “my body, my choice.”

Christie Roberts, Democratic senatorial campaign executive director, said: “If this report is true, this Republican attack on abortion access, birth control and women’s health care has dramatically escalated the stakes of the 2022 election.

“At this critical moment, we must protect and expand Democrats’ Senate majority with the power to confirm or reject supreme court justices.”

“I am horrified by the apparent draft supreme court opinion leaked this evening … this should not be the supreme court’s final opinion when it comes to abortion rights,” said New York governor Kathy Hochul in a statement.

The governor later added on Twitter: “I refuse to let my new granddaughter have to fight for the rights that generations have fought for & won, rights that she should be guaranteed.”

The former secretary of state Hillary Clinton said: “This decision is a direct assault on the dignity, rights, and lives of women, not to mention decades of settled law.

“It will kill and subjugate women even as a vast majority of Americans think abortion should be legal. What an utter disgrace.”

Meanwhile, Republican senator Tom Cotton condemned the leak but applauded the vote.

He said: “The Supreme Court must get to the bottom of this leak immediately using every investigative tool necessary.

“In the meantime, Roe was egregiously wrong from the beginning and I pray the Court follows the Constitution & allows the states to once again protect unborn life.”

Abortion law in America explained

Roe v Wade in 1973 gave women in the US an absolute right to an abortion in the first three months of pregnancy, and limited rights in the second trimester.

In 1992, in Planned Parenthood v Casey, the court ruled that states could not place an "undue burden" on women seeking abortions before a foetus could survive outside the womb, at about 24 weeks.

In 2020, AP VoteCast found 69% of voters in the presidential election said the Supreme Court should leave the Roe Wade decision as is; just 29% said the court should overturn the decision.