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How will the Supreme Court vote on abortion after leaked papers?

Documents leaked to Politico suggest the court will vote to remove federal abortion protections but the real outcome of the vote won’t be known until July.

Update:
US Supreme Court Police officers set up barricades on the sidewalk as demonstrators gather in front of the US Supreme Court.
BRENDAN SMIALOWSKIGetty

A surprise leak early on Tuesday morning could have revealed the Supreme Court’s ruling on upcoming cases that challenge Roe v Wade, the constitutional right to abortion, in the US.

“We hold that Roe and Casey must be overruled,” Justice Alito says in the document, “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.”

While the outcome is not surprising, the Supreme Court is packed with conservative judges, it brings home in very real terms what could be a reality for millions of women across America come the public announcement of the vote in July.

“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,” President Joe Biden said in a statement on Tuesday.

“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,” he said.

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The ruling from the court would immediately end legal abortions in 22 states, with more to follow. Abortion laws have never been enshrined in federal law, meaning existing state laws would take effect on its overruling.

How can Roe v Wade be overturned?

Rulings from the court are based upon a simple majority. With nine justices in total, the changing politics of appointments to the group means the court bestows different rulings on the same topics over time.

Why this is a problem for women’s rights campaigners is that many of the recent appointees to the court have been put in place by conservative presidents. Donald Trump had the opportunity to appoint three judges during his four-year spell as president. At the beginning of 2016, the court was made up of five ‘conservative’ and four ‘liberal’ judges, though ideologically the group was flexible with rulings.

Now in 2022, the court is split by six ‘conservative’ and three ‘liberal judges’ who are much more set in their positions. While the narrow split in 2016 meant decisions were much tighter, the death of liberal justice Ruth Bader Ginsburg in 2020 meant a conservative, Amy Coney Barrett, could replace her.

Challenges to Roe v Wade by governments in Mississippi and Texas, that challenge constitutional abortion rights, therefore have a better chance than any in recent memory of toppling the landmark rulings.

“I am angry, upset and determined,” said Senator Elizabeth Warren, “The United States Congress can keep Roe vs Wade the law of the land, they just need to do it.

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