Roe v. Wade case: What is it? Why does the case influence abortion rights?

For nearly fifty years, Roe V. Wade has provided the legal right to abortion in the United States. Through various court case, including 1992 Planned Parenthood V. Casey, these rights have been expanded. For example, Casey, granted privacy rights to those seeking an abortion, meaning that approval from one’s partner was not needed for an procedure to be carried out. However, Congress has failed to pass laws that codify these rights leaving them vulnerable to being overuled by the Supreme Court.

Earlier this week, POLITICO released a copy of a draft decision written by Supreme Court Justice Samuel Alito that struck down Roe V. Wade and Casey V. Planned Parenthood, prompting protests and condemnation from many in the Democratic party.

Chief Justice John G. Roberts, Jr. described the leak as an “egregious breach of trust,” saying that the circulation of draft opinions forms an “essential part of the Court’s confidential deliberative work.” The Chief Justice has called for the launch of a full investigation, but some legal experts do not believe any laws were broken. Rather the institutional norm of secrecy before opinions are announced was ignored.

Most Republicans have shown to be much more concerned about the leak than the opinion’s content. Some GOP leaders have celebrated the possible overturning of Roe, including former-Wisconsin Governor Scott Walker.

After the news broke, Walker took to Twitter, arguing that it was now time for the pro-life camp to convince the country that their opinion is correct.

Abortion Rights and the Constitution

The legality of the right to abortion in Roe V. Wade was determined based on the Ninth and Fourteenth Amendments.

When writing for the majority opinion in Roe V. Wade, Republican Supreme Court Justice Harry Blackmun argued that the “right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action” or the Ninth Amendment’s “reservation of rights to the people,” was considered “broad enough [...] to encompass a woman’s decision whether or not to terminate her pregnancy.”

However, in the draft opinion obtained by POLITICO, Justice Alito critics the logic of Roe V. Wade and describes it as “egregiously wrong from the start.” Alito beleives that the former-Justices took liberties with their constitutional interpretation. Part of Alito’s argument, as a constitutional originalist, is bsed on the fact that the term “abortion” does not appear in the constitution, and thus, a right to it cannot be justified. This line of argumentation has been described as flawed considering the long list of items not mentioned in the constitution, including women.

Why was Roe V. Wade never codified?

Now that there is a real possibility that Roe could be overturned, the Democratic party has begun a giant game of finger-pointing.

Accusations of wrongdoing have been lodged against Democratic presidents Bill Clinton, Barack Obama, and Joe Biden, who have failed to pass a law enshrining the right; to voters who stayed home in 2016; and party leaders who have long held that a person could be a Democrat and pro-life.

From the White House, the message has been that the President disagrees with the draft opinion and, in the case Roe is overturned, believes that the responsibility “will fall on voters to elect pro-choice officials this November.” Many Democrats, however, think that their party’s leadership should take greater responsibility for the failure to codify the protections offered by Roe, citing continued efforts to support anti-choice candidates.

For instance, on Wednesday, 4 May, Speaker Nancy Pelosi and House Majority Whip Jim Clyburn campaigned for incumbent anti-choice Rep. Henry Cuellar.

Cuellar, is the last anti-choice member of the House caucas and has supported some of the state’s strictest abortion laws, including SB 8.

Defending the establishment’s endorsement of Cueller, Rep. Clyburn said he does not believe Democrats “ought to have a litmus test” and that the party’s strategy should be “to bring as many people into the party as we possibly can.”

Progressive Democrats have become increasingly vocal in opposition to this logic, particularly when Rep. Cuellar is running against pro-choice candidate Jessica Cisneros. However, many party memebrs have said that it is logically inconsistent to tell voters to send pro-choice leaders to Washington and for the party establishment to favor an anti-choice candidate.

While focus has been drawn to the Texas House race, the Senate is where chances of codifying Roe face a greater threat.

The House of Representatives passed The Women’s Health Protection Act last September, but the upper house of Congress never picked up the bill.

The filibuster being the primary obstacle has many worried that codification will not come soon. First, it is unclear whether centrist Senators, including Joe Manchin (D- WV), Kirsten Sinema (D- AZ), Susan Collins (R-ME), and Lisa Mirowski (R-AK), would be willing to support federal abortion protections. Second, even if all four endorsed the bill, Democrats must hold onto their fourteen seats up for re-election and pick up at least seven. Looking at the 2022 Senate Map, the numbers do not seem to be there. The seats where Democrats have the best chances include North Carolina, Ohio, Pennsylvania, and Wisconsin, which leaves them short of the votes they would need to pass the law.

Should the Supreme Court finalize their decision to overrule Roe, some Democrats believe it could be a key issue to galvanize support with the base. Whether this will be enough, when so many conservative states have Senator’s up for election, remains to be seen .