Abortion rights on the brink: Catch up on the developments

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The Supreme Court may be poised to end the right to an abortion that American women have had for nearly 50 years.

A draft opinion – published on Monday by Politicoin an unprecedented breach of secrecy at the normally secretive high court – suggests Republican-appointed justices could use their new power to deliver what conservative legal activists have spent decades trying to accomplish: a full and complete reversal of Roe v. Wade.

The opinion is not final

These things can and do change, such as Chief Justice John Roberts’ last-minute decision in 2012 to save the Affordable Care Act.

CNN’s Joan Biskupic has written about how the Roe decision was crafted, with changes in the weeks before it was handed down in 1973.

Arguing in real time

Details of those dramas seeped out years or decades later.

Biskupic has reported Roberts is willing to uphold Mississippi’s law that would ban abortion at15 weeks of pregnancy, which is in line with some European countries, as a middle ground.

But the other Republican-appointed justices, led by Samuel Alito, want to completely change the meaning of precedent and hand control of the abortion issue back to states.

“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” Alito writes in the draft opinion.

The question now is whether another conservative on the court – Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh or Amy Coney Barrett – might disagree.

What was the release of the draft meant to accomplish?

The publishing of the draft opinion by Politico puts the Supreme Court’s inner workings in public. Roberts ordered an investigation by the Marshal of the Court, but secrecy of decisions is custom rather than law, so it’s not clear what penalty the source of the leak could face.

“Is the leak designed to get (Kavanaugh) to change his mind or designed to make sure he does not change his mind?” wondered John King on CNN on Tuesday. “That’s one of the mysteries as we watch this play out.” Some experts have wondered if Kavanaugh might be the most likely to switch sides.

King’s question is valid, and it will be all the more intriguing if this draft opinion does not come to be. The court’s formal ruling is not expected to be published until late June.

The unexpected release of the draft opinion, however, is a subplot to the larger issue of a court willing to remake the social landscape of the country.

These justices used to view Roe v. Wade as precedent

I looked at what justices like Alito, Kavanaugh and Gorsuch said when they were trying to get confirmed – that Roe was accepted precedent. Thomas said he hadn’t given it much thought. Those days seem far away now. Read more here.

In the draft opinion, Alito unleashes on the Roe decision as “egregiously wrong.”

Some Republicans must feel betrayed

Many Republicans who have worked for this moment are elated.

But Sen. Susan Collins of Maine, who previously expressed her confidence that the GOP-appointed judges she supported would not overturn Roe, issued a statement of shock at the draft opinion, suggesting she had been misled. Sen. Lisa Murkowski of Alaska said the draft “rocks my confidence in the court.”

Perhaps Collins should have simply paid a bit more attention. What justices like Alito and Kavanaugh said about precedent in their confirmation hearings seemed to contradict their earlier views as government lawyers. Now those earlier views, that Roe was wrongly decided, may inform the law of the land.

Abortion rights supporters would have little recourse

The minority of Democrat-appointed justices on the Supreme Court has little power in a court newly emboldened.

Meanwhile, the Republican minority in the Senate can squash any attempt to codify Roe into law.

The effort to overturn Roe v. Wade took nearly 50 years of hard work. The effort to remake courts or codify abortion into law could take a very long time too.

Not all Democrats support abortion rights

Sen. Joe Manchin, the West Virginia Democrat, opposes abortion rights and will not change Senate rules to codify Roe into law. That means there aren’t enough votes to change the rules, given that it’s a 50-50 Senate and Democrats need every vote.

General support for Roe and abortion rights

Americans, broadly, are supportive of Roe and abortion rights, although the details can vary with how pollsters ask the question.

According to a CNN poll conducted in January, more than two-thirds, 69% of Americans, do not support overturning Roe v. Wade.

The poll also asked how people would feel if the law was overturned, and the results suggest a large number of Americans would be frustrated:

Americans do not speak with one voice on abortion

It’s true that a majority of Americans support protecting abortion rights, but it’s also likely those views vary by state.

In this way, Alito’s draft opinion to give power back to state legislators might find more supporters in certain portions of the country.

Views on whether abortion should be legal have been relatively static for years. In a PRRI survey in 2018, about two-thirds of people in Massachusetts said abortion should be legal in all or most cases. And Massachusetts will protect abortion rights in that state.

Much smaller minorities, 34% in Louisiana and 39% in Arkansas, said abortion should be legal in all or most cases. Abortion would face likely bans in those states.

In many parts of the country, support is about evenly split, including in the political battlegrounds of Texas and Georgia. Both states are among those that have passed extreme limits on abortion, which have already created a patchwork of access to abortion services.

How many abortions are performed each year?

The draft opinion, if it becomes law, would have a profound and immediate impact on women in the half of the country that may not have access to abortion services later this year.

There were 629,898 legal abortions in the US in 2019, according to the US Centers for Disease Control and Prevention. The vast majority – 92.7% – took place before 13 weeks of gestation. Far fewer, 6.2%, took place between 14 and 20 weeks of gestation, and less than 1% took place at more than 21 weeks. A large portion of US abortions, 42.3%, are induced very early in pregnancy by medication.

Abortion-access states vs. abortion-ban states

If Roe is overturned, more than half of states, 26, could feature abortion bans, according to the Guttmacher Institute, which supports abortion rights.

Nine states have pre-Roe bans that could potentially be enforced and 13 have passed “trigger bans” that would go into effect if Roe is overturned. See the maps.

A larger threat to privacy

President Joe Biden is not extremely comfortable talking about abortion. He supports protecting a woman’s right to choose an abortion as a policy matter but is a Catholic who opposes abortion personally.

Until Tuesday, according to CNN’s White House team, he had not used the word “abortion” as President. Talking to reporters about the draft opinion, he immediately broadened out the scope of the decision to argue Alito’s thinking could jeopardize other decisions, including the right to same-sex marriage.

“Even more equally as profound is the rationale used. And it would mean that every other decision relating to the notion of privacy is thrown into question,” Biden told reporters.

A new political reality

The draft opinion, if it becomes law, remakes the political conversation heading into the 2022 midterms, according to CNN’s Chris Cillizza.

Democrats will seize again on women’s rights as a political issue, even as they have little they can tangibly deliver to protect the right to an abortion at the state level.

Republicans for now are trying to keep focus on the economy and not abortion, as they look to appeal to educated voters in the suburbs who are more likely to support abortion rights.

What does it all mean?

Women would undeniably have fewer rights. CNN legal analyst Carrie Cordero said on “Inside Politics” that the draft opinion would make women less free.

“If we can back up the lens, it means women in the 21st century are going to be less constitutionally protected than in the 20th,” she said.

Stop saying courts aren’t political. Another CNN analyst, Elliot Williams, said the draft opinion would disprove the increasingly naive idea that the nation’s courts are not driven by political belief.

“We’ve got to get off this idea that the Supreme Court is this apolitical body that exists outside of politics, when less than two years after a major personnel shift at the court, a major precedent is falling,” Williams said. “This idea that the court sort of exists outside and above it all – it’s just not reality.”