Joe Biden has urged voters to elect pro-choice candidates this November, hoping the “radical” leaked Supreme Court draft decision to overturn Roe v Wade, will help motivate both Democrats and Republicans who support a women’s right to choose.
The leaked draft ruling from the nation’s highest court – both shocking and unsurprising – was widely condemned by activists and high-profile politicians such as Representative Alexandria Ocasio-Cortez and Senator Bernie Sanders, who said ending the federal right to legal abortion would most harm poorer women and women of colour.
They assessed that nearly 30 states would ban abortions, in almost every circumstance, if the leaked draft showing five members of the nine-member court supported voting to scrap Roe, became an official ruling. More than a dozen of those states include so-called “trigger” laws, that would make them active the moment Roe is overturned.
“This is the most ominous and alarming sign yet that our nation’s highest court is poised to overturn Roe v Wade, ending the constitutional right to abortion as we know it and ripping away our freedom to decide if, when, and how to raise our families,” said Mini Timmaraju, president of NARAL Pro-Choice America, one of the country’s largest advocates for reproductive rights.
In a statement, added: “While this is a draft opinion and abortion is still legal, we need to brace for a future where more and more people are punished and criminalised for seeking and providing abortion care.”
According to the leaked draft, first obtained by Politico and which Chief Justice John Roberts said was genuine, Justice Samuel Alito said that he and four other conservative justices – Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – voted to overturn Roe after hearing oral arguments in a case relating to an abortion law in Mississippi, that the court had agreed to consider.
“Roe was egregiously wrong from the start,” wrote Mr Alito, a conservative nominated to the court in 2005 by George W Bush, in the draft opinion dated 10 February.
The draft revealed that in the case the court was hearing, Dobbs v Jackson Women’s Health Organisation, over legislation that would have banned abortion after 15 weeks, that justices supported upholding the Mississippi law. The law had been blocked by lower courts.
And it said five justices were ready to overturn Roe v Wade, the 1973 ruling that has been used by pro-choice campaigners for half a century, to ensure women had the right to access legal abortions.
“As we’ve warned, SCOTUS isn’t just coming for abortion – they’re coming for the right to privacy Roe rests on, which includes gay marriage + civil rights,” tweeted Ms Ocasio-Cortez, the progressive Democrat who represents New York City.
While those most closely following the issue – and in particular the grassroots efforts by Republicans at the state level to pass extraordinarily restrictive measures that would put the US on a par with heavily Catholic nations such as El Salvador and Guatemala – were not entirely surprised by the leak, at a broader level the news was felt like a thunder bolt.
For several generations of women, Roe was both a practical safeguard, and a symbol of bodily autonomy and a women’s agency.
It was also very popular; a consistent majority of Americans support the right for women to access legal abortion. The most recent polls suggest 59 per cent support legal abortions, while 39 per cent oppose.
Experts say the situation has come about because of an increasingly polarised politics, and an increasingly politicised Supreme Court, that has been used by conservative and religious activists. Aided by the likes of Donald Trump, who promised evangelical and religious voters to nominate and appoint conservative justices and judges, the highest court is now on the threshold of scrapping the longstanding precedent.
“It was not entirely shocking but people are upset about getting rid of Roe,” Jon O’Brien, a longtime DC-based leader in the campaign for reproductive rights in the US, told The Independent.
“You know, Roe was written by Justice Harry Blackmun, who’d been appointed by Richard Nixon in 1970,” he said. “How far have we come from that situation? And it’s not just a matter of Republicans, the Democrats have been doing it as well.”
He said: “They’re putting in justices that are going to reflect more what the party and the party supporters supposedly believe in. And that’s the inevitable conclusion of where we are today.”
Laura Chapin, a Democratic strategist from Colorado, said she and others had been warning about Republican efforts to push back women’s rights at the state level for some time.
She said she was pleased Mr Biden had now acknowledged the threats to women.
“I’m glad he’s saying what those of us who are on the ground here in the states have been saying for months, if not years, which is this – the Supreme Court is potentially taking away a constitutional right that’s been in existence for 50 years,” she said.
“That itself is extremely radical. And we should absolutely talk about that as an electoral issue.”
She said she believed that grassroots Democrats and young women in particular would be motivated to vote in the midterm elections.
History suggests that a president’s party usually loses one or both chambers of Congress in the midterms, and with Mr Biden’s own approval rating as low as 42 per cent, there has been little expectation that precedent would be bucked.
In his statement, issued before the court confirmed the leaked draft was authentic, Mr Biden, himself a Catholic, suggested Democrats should put the issue front and centre of their midterm strategy.
“I believe that a woman’s right to choose is fundamental, Roe has been the law of the land for almost 50 years, and basic fairness and the stability of our law demand that it not be overturned,” he said.
“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. And it will fall on voters to elect pro-choice officials this November.”
Later, speaking to reporters as he boarded Air Force One on route to Troy, Alabama where he visited the site of a plant making Javelin missiles that are to be shipped to Ukraine, he said he felt the ruling was not in match with where the country was.
“If it becomes a law and if what is written is what remains, it goes far beyond the concern of whether or not there is the right to choose,” he said.
“It goes to other basic rights: the right to marry, the right to determine a whole range of things … It’s a fundamental shift in American jurisprudence.”
Michael Fraioli, a Democratic strategist from DC, said he thought the news would help Democrats however it played out.
“If this becomes law it motivates the Democratic base,” he said. “If the court changes its mind, it will demoralise Republicans.”
Groups such as the the Guttmacher Institute point out that as many as 54 per cent of abortions in the US – the total number of which are on the decline – are so-called “medication abortions”, in which women can use an “abortion pill”, approved by the US Food and Drug Administration, to end their pregnancy.
Nevertheless, experts say if Roe is scrapped, it will create a two-system country where abortion is legal in some states and illegal in others. Activists fear that could lead to a return to illegal, unsafe abortions, particularly for the poorest and already vulnerable.
Figures such as Mr Sanders say it is essential the government now try and pass a federal safeguard to providing abortions.
Earlier this year, Democratic-backed legislation to protect abortion access nationally died in Congress as the narrow majority held by Mr Biden’s party was insufficient to overcome Senate rules requiring a supermajority to move forward on most legislation.
In February, the Women’s Health Protection Act was defeated in the Senate, 46-48. It required 60 votes to overcome the filibuster rule that allows the minority party to block major legislation. Among those voting with Republicans were Democrat Joe Manchin of West Virginia.
The leaked draft has now led to fresh calls to try again to pass the bill, and scrap the filibuster if necessary.
“Congress must pass legislation that codifies Roe v Wade as the law of the land in this country NOW,” tweeted Mr Sanders, the progressive from Vermont.
“And if there aren’t 60 votes in the Senate to do it, and there are not, we must end the filibuster to pass it with 50 votes.