Court Battles

The Memo: Five consequences if the Supreme Court strikes down Roe v. Wade

The Supreme Court stands on the brink of striking down Roe v. Wade, and the news has hit the political world like an earthquake. 

A Tuesday statement from the court confirmed that the draft opinion authored by Justice Samuel Alito, published by Politico the previous evening, was authentic. Chief Justice John Roberts ordered an investigation to find the source of the leak.  

It is possible the Court could come to a different decision in the end. But with Politico reporting that there are at least five justices in favor of overturning Roe, such a reversal does not appear likely. 

Even if Roberts, himself a conservative, were to vote to uphold the law, it appears that Justices Alito, Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas would form a majority in the opposite direction. 

A final decision is expected to be made public within a couple of months. 

Assuming Roe is undone, the consequences will be seismic. 

Abortion is likely to be banned in about half the country 

The draft opinion written by Alito holds that decisions on the legality of abortion should be made at a state level and that no constitutional right to the procedure exists. 

In that scenario, approximately half the states in the nation would probably ban abortion. 

According to the Guttmacher Institute, 26 states would be “certain or likely” to ban abortion if Roe were to fall by the wayside. The Center for Reproductive Rights projects that abortion “likely would be prohibited in twenty-four states and three territories.”  

Whatever the precise number, the broad geographical contours of abortion’s fate are clear. 

The procedure would likely be outlawed across almost all of the South, most of the Midwest with the probable exceptions of Illinois and Minnesota, and across much of the Great Plains. 

For anti-abortion activists, this would be by far the greatest leap forward for their cause since Roe was decided in 1973. 

But for women in the affected states, the reality of reproductive choice would be forever altered — and traveling to states where the procedure was allowed would be time-consuming and expensive. 

Guttmacher’s researchers, for instance, estimate that a woman in Mississippi who wanted an abortion would face an average drive of around 500 miles each way to obtain one. 

Poorer women will feel the sharpest effects 

Widespread bans on abortion would affect millions of American women across the social and demographic spectrum. The Guttmacher Institute estimates that 24 percent of women will have had an abortion by the time they are 45 years old. 

But in a post-Roe landscape, it is clear that less affluent women will experience the greatest problems. Travel and accommodation costs, as well as time away from work, pose much higher barriers to women with lower incomes. 

Guttmacher’s research on this score dates to 2014. But at that time, it found that almost half the women who get abortions had income below the official federal poverty level and an additional 26 percent had incomes up to twice the poverty level. Just 1 in 4 women who had abortions had higher incomes than this.  

The same research found that 46 percent of women who get abortions are neither married nor cohabiting. 

Abortion rights activists have already been organizing to try to reduce the financial and logistical burdens that lower-income women face in seeking terminations.  

Democrats will try, but likely fail, to codify Roe in federal law 

Within hours of Alito’s draft decision being published on Monday evening, Sen. Bernie Sanders (I-Vt.) was tweeting a call for Roe’s protection of abortion rights to be codified in federal law.  

Sanders further demanded that if Democrats lacked 60 Senate votes to pass such a measure — which they clearly do — they should abolish the filibuster to get the job done. 

Similar calls were heard on Tuesday, with Democratic Party organizations from 53 states and territories seeking such codification. 

Speaker Nancy Pelosi (D-Calif.), in a statement describing Alito’s draft decision as “monstrous,” noted that the House had already passed such a codification — though she did not mention that push had gone nowhere in the Senate. 

Senate Majority Leader Charles Schumer (D-N.Y.) said on Tuesday morning that he would hold a vote on the matter. Although Schumer insisted such a vote would not be “an abstract exercise,” he and his Democratic colleagues know they don’t have the votes to pass the measure. 

Abolition of the filibuster appears to be a forlorn hope for Democrats, too.  

They would need every member of their party on board with such a proposal in the 50-50 Senate. Sens. Joe Manchin (D-W.Va.) and Kyrsten Sinema (D-Ariz.) are opposed to abolishing the filibuster. 

The Supreme Court’s standing will take a hit 

The court itself is coming under increased criticism for two reasons: for the draft decision itself, which has outraged liberals, and for the leak of that decision to a media outlet, which appears to have primarily drawn conservative wrath. 

There is no actual evidence at all so far about who leaked the document. While conservatives charge that the leaker is likely a liberal hoping to spark public uproar and intimidate conservative justices, liberals countercharge that the leak could come from a right-leaning source who wants to make sure none of the conservative justices backs away from their reported initial vote.  

Roberts complained on Tuesday in his statement about “a singular and egregious breach” of trust by the leaker. It was, he added, a “betrayal of the confidences of the Court.” 

Top Republicans, including Senate Minority Leader Mitch McConnell (Ky.) and House Minority Leader Kevin McCarthy (Calif.), have called for an investigation into the leak, but most legal experts struggle to see any crime that could be prosecuted unless the leaker lied to investigators about his or her involvement. 

Still, the court is in the crosshairs of controversy once again. 

That’s a problem given that public approval of the court had fallen to its lowest point in two decades last fall, according to Gallup polling.  

Gallup found that 40 percent of Americans approve of the way the Supreme Court is handling its job, while 53 percent disapprove. 

Abortion will be a big issue in the midterms 

The salience of abortion to November’s midterm elections just climbed sharply. 

Conservatives had hoped, and liberals feared, that the court might reach the conclusion reflected in Alito’s draft. But the reality gives the issue far greater force. 

That said, whether abortion will single-handedly shift many votes is less clear. The economy, inflation and President Biden’s handling of the pandemic may matter more to uncommitted voters. 

At the very least, though, one of the most divisive issues in American life is back with a bang center-stage. 

The Memo is a reported column by Niall Stanage. 

Tags 2022 midterm elections Abortion John Roberts John Roberts Nancy Pelosi Roe v. Wade Samuel Alito Supreme Court

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