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Roe vs Wade: Why are we surprised?

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A leaked draft of a US Supreme Court opinion that could overturn Roe v Wade, the landmark 1973 ruling legalising abortion in the US, has caused outrage in the US and beyond.

The leak, which was published by Politico on May 2, has brought reproductive rights back into the political conversation and sparked nationwide protests. 

Roe v Wade was a landmark decision in which the Supreme Court sided in favour of ‘Jane Roe’ the legal pseudonym of Texan Norma McCorvey who lived where abortions were banned except if necessary to save a life. 

The ruling, which enshrined abortion rights into federal law, has come to represent a core tenet of not only reproductive rights but also women’s rights in the US. 

Legal experts such as sitting Supreme Court justice Clarence Thomas, House Speaker Nancy Pelosi and celebrities including John Legend and Selena Gomez have come out to express discontent over the leak.

Clarence Thomas, the longest serving justice on the court, said the opinion leak has fundamentally undermined confidence in the highest level of the US judicial system. 

But aside from the nature of how the opinion was shared, or leaked, why was anyone surprised?

The overturning of Roe v Wade has been not only possible but probable since 45th US President Donald Trump nominated three justices to the Supreme Court.

The nominations of Neil Gorsuch, Brett Kavanagh and Amy Coney Barrett brought the conservative-liberal ratio of the court to 5-4. 

Whilst the Supreme Court is meant to be non-partisan, and there are specific checks and balances between the three key institutions of the US Government: the White House, Congress and the Supreme Court, political nominations have plagued the court for years.

During Obama’s presidency two liberal justices, Sonia Sotomayor and Elena Kagan, were nominated and Biden has just nominated Ketanji Brown Jackson to the Supreme Court. 

The extent to which politics affects the Supreme Court became apparent in 2016, when after conservative Justice Antonin Scalia died, Obama was blocked from nominating liberal Merrick Garland by the Republican Senate and Majority Leader Mitch McConnell. 

And even Biden is facing the notion of packing the court with liberal justices, otherwise known as increasing the number of justices in order to form a like-minded majority. 

The reason why this ruling could be both incredibly and incrementally impactful is due to the USA’s federalism, in which a federal government rules over 50 states. 

As a result, overturning the federal ruling of Roe v Wade would leave the decision of abortion law and regulation up to the states and their governors. 

States such as Michigan and Arizona already have abortion bans predating Roe, and 26 states, including 13 with ‘trigger laws’ are certain or likely to ban abortion. 

For example, Texas’ ‘Heartbeat Bill’, the 8th of its kind passed state-wide across the US, was passed into state law last September banning abortions six weeks after conception.

The first to rely on civil rather than criminal enforcement, allowing abortions to be banned de facto without having de jure risks, the bill is just the latest of a series of attempts made to weather Roe v Wade since its ground-breaking implementation 50 years ago. 

But Trump’s nominations to the court have proved to be the most overarching challenge, and have made the end of Roe inevitable. 

Now as states prepare to protect or deny abortion rights for women across the country in a post-Roe world, lawmakers push ahead to make changes to federal law through Congress.

With a large Democratic majority in the House of Representatives and a slim majority in the Senate, Democrats have vowed to move ahead with an attempt to codify abortion rights into US law.

But with their slim majority in the Senate meaning, they do not have the numbers to defeat the filibuster, a political procedure used largely by Republicans as a way to delay legislation by prolonging debate, Democrats are facing resistance.

Meanwhile, the Supreme Court has confirmed the authenticity of the leaked decision but stressed that it was not a final draft or decision and launched a probe into the leak.

Depending on the political landscape facing the US in the next 10 years, there could be a liberal Supreme Court in the next few decades which could rescind Roe’s overturn or even enhance abortion protection in the country. 

But in the meantime, millions of women and girls will be left without abortion rights, free sexual healthcare and contraception.

And Christian supporters will continue to vote Republican, pleased by Trump’s lasting presidential effect on the judiciary and consolidating the voting bloc in support of Trump 2024. 

With an entrenched constitution and long legal process, the likely overturning of Roe v Wade decision will be difficult to reverse in the short-term, but not impossible.

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