Biden vows to enshrine Roe v Wade into law if court overturns case

Washington: US President Joe Biden says the “basic fairness and the stability of our law demand” the Supreme Court not overturn the landmark 1973 Roe v Wade case that legalised abortion nationwide.

Biden issued the statement on Wednesday (AEST) after Politico released a draft opinion - which has since been confirmed as authentic - that suggested the court could be poised to overturn the case.

“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,” Biden said. “And it will fall on voters to elect pro-choice officials this November. At the federal level, 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.”

A crowd of people gather outside the Supreme Court in Washington after the draft decision was published in Politico.Credit: AP

Chief Justice John Roberts has ordered an investigation into the leaking of the draft opinion, which he said was an “egregious breach of trust”.

In the high court’s first public comment since the draft was published, Roberts said: “Although the document described in yesterday’s reports is authentic, it does not represent a decision by the Court or the final position of any member on the issues in the case.”

“To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed,” he said. “I have directed the Marshal of the Court to launch an investigation into the source of the leak.”

Biden said he would work to codify the right to abortion into federal law.

A decision to overrule Roe would lead to abortion bans in roughly half the states and could have huge ramifications for this year’s elections. But it’s unclear if the draft represents the court’s final word on the matter — opinions often change in ways big and small in the drafting process.

Whatever the outcome, the Politico report represents an extremely rare breach of the court’s secretive deliberation process, and on a case of surpassing importance.

“Roe was egregiously wrong from the start,” the draft opinion states. It was signed by Justice Samuel Alito, a member of the court’s 6-3 conservative majority, and appointed by former president George W Bush.

The document was labelled a “1st Draft” of the “Opinion of the Court” in a case challenging Mississippi’s ban on abortion after 15 weeks, a case known as Dobbs v Jackson Women’s Health Organisation.

The court is expected to rule on the case before its term ends in late June or early July.

The draft opinion states there is no constitutional right to abortion services and would allow individual states to regulate the procedure more heavily or to ban it outright.

“We hold that Roe and Casey must be overruled,” it states, referring to the 1992 case Planned Parenthood v Casey that affirmed Roe’s finding of a constitutional right to abortion services but allowed states to place some constraints on the practice.

“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

Politico said only that it received “a copy of the draft opinion from a person familiar with the court’s proceedings in the Mississippi case along with other details supporting the authenticity of the document”.

The draft opinion strongly suggests that when the justices met in private shortly after arguments in the case on December 1, at least five voted to overrule Roe and Casey, and Alito was assigned the task of writing the court’s majority opinion.

Votes and opinions in a case aren’t final until a decision is announced or, in a change wrought by the coronavirus pandemic, posted on the court’s website.

Demonstrators gathered outside the US Supreme Court to protest after news of the leak broke. Credit: Bloomberg

The report comes amid a legislative push to restrict abortion in several Republican-led states — Oklahoma being the most recent — even before the court issues its decision. Critics of those measures have said low-income women will disproportionately bear the burden of the new restrictions.

The leak jumpstarted the intense political reverberations that the high court’s ultimate decision was expected to have in the midterm election year. Already, politicians on both sides of the aisle were seizing on the report to fundraise and energise their supporters on either side of the hot-button issue.

Hundreds of abortion rights supporters gathered in anger at the US Supreme Court after news of the leak broke.

“The first line in the draft is that this is a moral issue,” Annie McDonnell, 19, a student at George Washington University, said, referring to the draft opinion. “If it’s a moral issue, you shouldn’t be depriving us of our choice.”

“Justices get out of my vagina,” one sign held aloft read. “I love someone who had an abortion,” read another.

The crowd was interspersed with a smaller number of anti-abortion activists, including some with drums and guitars chanting, “Hey, hey. Ho, ho. Roe v Wade has got to go.”

An AP-NORC poll in December found that Democrats increasingly see protecting abortion rights as a high priority for the government.

Associate Justice Samuel Alito last year.Credit: AP

Other polling shows relatively few Americans want to see Roe overturned. In 2020, AP VoteCast found that 69 per cent of voters in the presidential election said the Supreme Court should leave the Roe v. Wade decision as is; just 29 per cent said the court should overturn the decision.

In general, AP-NORC polling finds a majority of the public favours abortion being legal in most or all cases.

Still, when asked about abortion policy generally, Americans have nuanced attitudes on the issue, and many don’t think that abortion should be possible after the first trimester or that women should be able to obtain a legal abortion for any reason.

The landmark Roe v Wade decision has been disputed and contested many times over the five decades since it was handed down.

In that time abortion has emerged a central issue in American politics, dividing progressives - which typically supports a woman’s right to choose - from conservatives, which equate the procedure to a crime. Importantly, it has also served as a galvanising issue for religious voters courted by Republicans.

Alito, in the draft, said the court can’t predict how the public might react and shouldn’t try. “We cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work,” Alito wrote in the draft opinion, according to Politico.

In December, all six conservative justices signalled that they would uphold the Mississippi law, and five asked questions that suggested that overruling Roe and Casey was a possibility.

Only Roberts seemed prepared to take the smaller step of upholding the 15-week ban, though that too would be a significant weakening of abortion rights.

Until now, the court has allowed states to regulate but not ban abortion before the point of viability, around 24 weeks.

The court’s three liberal justices seemed likely to be in dissent.

Twenty-six states are certain or likely to ban abortion if Roe v Wade is overturned, according to the pro-abortion rights think tank the Guttmacher Institute.

Of those, 22 states already have total or near-total bans on the books that are currently blocked by Roe, aside from Texas. The state’s law banning it after six weeks has already been allowed to go into effect by the Supreme Court due to its unusual civil enforcement structure. Four more states are considered likely to quickly pass bans if Roe is overturned.

Sixteen states and the District of Columbia, meanwhile, have protected access to abortion in state law.

This year, anticipating a decision overturning or gutting Roe, eight conservative states have already moved to restrict abortion rights. Oklahoma, for example, passed several bills in recent weeks, including one that goes into effect this northern summer making it a felony to perform an abortion. Like many anti-abortion bills passed in GOP-led states this year, it does not have exceptions for rape or incest, only to save the life of the mother.

Seven Democratic-leaning states protected or expanded access to the procedure, including California, which has passed legislation making the procedure less expensive and is considering other bills to make itself an “abortion sanctuary” if Roe is overturned.

Opinions about the expected ruling were split along partisan lines. US Democratic Senator Elizabeth Warren said: “An extremist Supreme Court is poised to overturn #RoeVWade and impose its far-right, unpopular views on the entire country. ”

Republican Senator Tom Cotton said: “The Supreme Court & the DOJ must get to the bottom of this leak immediately using every investigative tool necessary.”

AP, Reuters

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