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ABC News
ABC News
Health
Rebecca Armitage 

Roe v Wade: The US Supreme Court's draft ruling on the future of abortion rights appears to have leaked

A crowd of people gathered outside the Supreme Court after the draft opinion was published by Politico.  (AP: Alex Brandon)

A leaked document suggests the US Supreme Court could soon vote to overturn a landmark ruling that grants Americans the constitutional right to an abortion.

America's highest court is set to make a decision by the end of June on Mississippi's attempt to ban most terminations after 15 weeks of pregnancy.

But in a move that is unprecedented in the Supreme Court's modern history, a secret draft ruling written by one of the judges was leaked to a US media outlet. 

The document, published by Politico, suggests five of the nine judges on the bench privately voted to strike down a 49-year-old decision that makes abortion legal at a national level. 

So what does this mean for America? 

Here's everything we know. 

First off, what is Roe v Wade? 

The right to get an abortion in the United States comes from a landmark court decision made in the 1970s. 

A Texan mother who went by the pseudonym "Jane Roe" sued for her right to terminate a pregnancy in 1970. 

After years of legal challenges and appeals supported by the US women's rights movement, her case was eventually heard by the Supreme Court. 

The judges ruled by a 7-2 majority in 1973 that the Texas law was unconstitutional.

They said that while America's constitution made no mention of abortion, the right to privacy was implied and that should extend to a person's reproductive decisions. 

For half a century, that court ruling has prevented all 50 states from banning abortion access outright. 

But the ruling did leave some wiggle room for states. 

"We ... conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation," Justice Harry A Blackmun wrote.

This qualification to his ruling means that abortion access in the US now varies from state to state. 

California, for example, is a politically progressive state that claims to offer the easiest access to the procedure in the United States.

But Texas, a politically conservative state, prohibits terminations more than six weeks into a pregnancy.

Why is the Mississippi case important? 

This year, the US Supreme Court has been considering a case called Dobbs v Jackson Women's Health Organisation. 

The case is challenging a law that was passed in the US state of Mississippi in 2018, banning abortion after 15 weeks. 

Opponents say it violates the rights established by Roe v Wade, which does not cut off abortion access until a foetus becomes viable at 24 weeks. 

A decision is not expected to be announced before the court's current session ends in June.

Supporters of abortion rights warned this case would be significant because conservative judges hold a 6-3 super-majority on the US Supreme Court.

Samuel Alito (bottom, far left) wrote the document that appears to have leaked.  (Supplied: Collection of the Supreme Court of the United States)

Judges with a more progressive view of US constitutional law used to hold a slim majority on the court, but when Donald Trump became president in 2017, he was able to hand-pick three new justices. 

Mr Trump was open about his hopes that the court would one day overturn Roe v Wade.

So what exactly is in the leaked document? 

Politico says in February of this year, Justice Samuel Alito wrote a draft majority opinion on the Mississippi abortion case.

In it, was a bombshell.

"Roe was egregiously wrong from the start," Justice Alito wrote.

"It is time to heed the constitution and return the issue of abortion to the people's elected representatives."

Politico's editors insist its story went through an extensive review process and it believes the document to be authentic.

SCOTUSblog, which closely monitors the court, also believes the draft is real.

It's important to note that the document is a draft that reflects only the opinion of Justice Alito.

Politico is reporting four other judges on the bench — Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — have voted in favour with him. 

But in the three months since the draft circulated around the court, some may have changed their minds or suggested amendments.

The source of the leak is unknown.

But giving the document to the media weeks before the decision was set to be made public may have been a last-ditch attempt to pressure some justices to switch sides.

What if they really do strike down Roe v Wade? 

If some of the Justices change their minds by June, there is a chance Roe v Wade will survive.

But if few or no amendments are made to Justice Alito's draft and it becomes the majority opinion, the effect on abortion access in the US will be swift and dramatic.

Protesters immediately gathered outside the US Supreme Court when the Politico story was published.  (AP: Alex Brandon)

More than 20 states already have laws or constitutional amendments in place for this very possibility. 

If Roe v Wade is overturned, some states have what is called a "trigger ban" in place so that abortion is immediately outlawed in almost every situation.

Among them is Arkansas, which would have a near-total ban on abortions.

Kentucky, Louisiana and South Carolina would ban terminations six weeks into a pregnancy.

Supporters of abortion access say the procedure would only be accessible to those who could afford to travel to the states where it remains legal.

They say those who cannot afford it would be forced to give birth or may even seek a dangerous, back-alley abortion.

What are people saying about the leak?

While support for abortion varies from state to state, national polling has consistently shown for several years that most Americans believe the procedure should be legal. 

A poll in late 2021 found that 59 per cent of American adults believe abortion should be legal in all or most cases, while 39 per cent think it should be illegal in all or most cases.

Democratic New York Governor Kathy Hochul responded to Politico's leak promising her state would always make the procedure available.

"This is an absolutely disgraceful attack on our fundamental right to choose, and we will fight it with everything we've got," she said. 

"Let me be loud and clear: New York will always guarantee your right to abortion. You have our word."

Meanwhile, Republican Senator for Arkansas Tom Cotton welcomed the possibility of a post-Roe America.

"The Supreme Court … must get to the bottom of this leak immediately using every investigative tool necessary," he said.

"In the meantime, Roe was egregiously wrong from the beginning and I pray the court follows the constitution and allows the states to once again protect unborn life."

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