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Wednesday, Feb 08, 2023

What has happened in week since draft Roe v Wade opinion leaked?

What has happened in week since draft Roe v Wade opinion leaked?

US lawmakers push ahead with federal legislation; states prepare for abortion no longer being protected by the Constitution.

A leaked draft of a United States Supreme Court opinion that would overturn Roe V Wade, a landmark 1973 decision that legalised abortion across the country, has cast abortion rights back into the centre of US political discourse.

In the wake of the leak, which was published by Politico on the night of May 2, protests both for and against protected access to abortion have broken out nationwide.

Federal legislators have vowed to move ahead with a – likely symbolic – attempt to codify the right to abortion access in US law, while state elected officials across the US have sought to prepare for a post-Roe v Wade world.

Meanwhile, the Supreme Court has confirmed the authenticity of the document, stressing it was not a final draft and launching a probe into the leak.

Here’s what’s happened in the week since the draft opinion leaked:


Vow to pass federal legislation


The leak is sure to electrify upcoming US midterm elections, which will determine the political makeup of the US Congress.

While Democrats currently hold a majority in the 435-seat House of Representatives and a razor-thin majority in the 100-seat Senate, they do not currently have the votes to reach the 60-vote threshold needed to overcome a filibuster in the latter chamber.

Nevertheless, Senate Majority leader Chuck Schumer, a Democrat, has vowed to move forward with a vote to codify the right to access to abortions into US law.

Prior to Roe v Wade, laws related to abortion access were left up to the states. The 1973 decision ruled that abortion access was a right protected by the US Constitution. Striking down the decision, without federal legislation, would return control of abortion access to states.

Pro abortion-rights protesters pass along an ongoing art project called ‘Line up for Roe’ outside of the US Supreme Court


Schumer called a vote on the legislation one of “the most important we ever take”, with Democratic brass noting that even with slim chances of attaining 60 votes in the chamber, where Democrats and independents who vote with Democrats hold 50 seats, the vote would put legislators firmly on record about where they stand on the issue.

The leak has also further fuelled perennial debate over doing away completely with the filibuster, which would allow most legislation to pass with a simple majority in the chamber.

Republicans, for their part, have largely skirted the wider issue of abortion rights, instead focusing on the leak itself, with Senate Minority Leader Mitch McConnell saying the act must be “investigated and punished to the fullest extent possible, the fullest extent possible”.

Democratic legislators have raised further concerns after McConnell said in an interview that a national ban on abortions was “possible” if Republicans took control of the legislature in the midterms.

States ready for a post-Roe reality


The response to the leaked opinion has put a spotlight on states that have for years been preparing for a post-Roe v Wade world.

About half of US states are expected to impose bans or restrictions on abortion access if Roe v Wade is overturned.

Many state legislatures have increased their pace ahead of the Supreme Court decision in Dobbs v Jackson Women’s Health Organization, the case that could see Roe v Wade overturned.

In 2022, 546 restrictions on abortion have been introduced in legislatures in 42 states, according to the Guttmacher Institute.


Of those, 32 restrictions have passed at least one legislative chamber in 12 states, with 37 restrictions enacted in 10 states.

At the time of the leak, 13 states had already passed so-called trigger laws, which are designed to ban almost all abortions within state lines either immediately or in the days following the end of Roe v Wade.

Another five states still have pre-Roe v Wade abortion bans on the books, although it is unclear if those bans would all go into effect immediately or if authorities would enforce the laws.

While many state legislatures were not in session at the time of the leak, state elected officials have vowed to redouble efforts to pass legislation related to abortion.


In Louisiana’s House, legislators last week advanced one of the most restrictive abortion bills in the country that would make women and girls criminally liable for getting an abortion.

In South Dakota, Governor Kristi Noem has said she will “immediately call for a special session to save lives and guarantee that every unborn child has a right to life in South Dakota” if Roe v Wade is overturned.

Meanwhile, Mississippi Governor Tate Reeves said the state’s trigger law would go into effect if Roe v Wade is overturned, while sidestepping questions about whether the state would try to ban contraception if the ruling is struck down.

State attorneys general in Missouri and Arkansas have also said they would certify the trigger laws in their states if Roe v Wade is overturned.

The possibility has also led to an opposite push from supporters of abortion rights.


At least 16 states had passed laws in recent years to protect the right to an abortion.

Following the leak, California’s governor and top legislators said last week that they will pursue a state constitutional “amendment to enshrine the right to choose in our state constitution so that there is no doubt as to the right to abortion in this state”.

For her part, New York Governor Kathy Hochul vowed the state would remain “a safe harbour” for those seeking abortions from across the country.

Meanwhile, Michigan’s attorney general has said she will not enforce the state’s 1931 law banning abortions if Roe v Wade is overturned, but acknowledged that the state’s 83 local county prosecutors would be able to enforce the law if they chose to do so.

What do we know about the leak investigation?


Supreme Court Chief Justice John Roberts said last week that he has directed the court marshal “to launch an investigation into the source of the leak”.

Since then, there have been few details of the scope and scale of the investigation, with sources telling the Wall Street Journal that no marshal is known to have conducted an investigation into a leak.

Observers have noted the decision to enlist the marshal instead of an agency like the Federal Bureau of Investigation (FBI) may show a desire to keep the investigation and findings close at hand.

Observers have also noted that it is far from clear whether the leak of the draft would constitute a crime.


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