The Senate voted down a bill to codify the right to an abortion on Wednesday as Democrats tried but failed to secure the core protections of Roe v. Wade before it is potentially struck down by the US Supreme Court.
The vote, which was expected to fail, was in response to a leaked Supreme Court draft ruling that would overturn Roe v. Wade, the landmark 1973 decision that declared abortion access was a constitutional right. The draft is not final and the court could still choose to put forward a different ruling, but when Politico published a 98-page first draft by Justice Samuel Alito Jr., it suddenly made real the possibility that the justices could upend decades of abortion protections nationwide in the next few weeks.
It was a revelatory moment on the possible fate of abortion access, and one that also raised a lot of questions, some without any immediate answer. Here’s what we know so far about what happened, the current state of abortion access, and what happens next.
Can Congress take action?
As Wednesday’s vote showed, despite controlling the Senate, the House of Representatives, and the White House, Democrats do not have the votes to counter the Supreme Court if it does ultimately choose to overturn Roe. After the draft opinion leaked, many Democrats quickly responded by calling for the codification of Roe v. Wade, meaning, voting on congressional legislation that would legalize abortion nationwide, regardless of the Supreme Court’s final opinion.
Many Democrats also called for eliminating the Senate filibuster — the rule that requires 60 out of 100 Senate votes to pass most bills instead of a simple majority. Eliminating the filibuster would be a necessary step toward codifying abortion rights because there are not enough Republican abortion rights supporters to get close to 60 votes. Doing away with the filibuster would require 50 votes and there are 50 Democratic senators, but at least two of them — Joe Manchin and Kyrsten Sinema — refuse to dismantle the longstanding rule.
Democrats will have to hope that they expand their majority (Vice President Kamala Harris casts the tie-breaking vote if the Senate is deadlocked) by electing more Democrats in the midterms this fall. Conversely, if Republicans win the majority, it is possible they will vote to end the filibuster themselves, enabling them to pass federal restrictions on abortion rights.
Is Roe v. Wade — which established a core, nationwide right to abortion — still in effect?
Yes. Chief Justice John Roberts Jr. confirmed that the document published by Politico is legitimate, but it is only a draft (it’s labeled “1st Draft” at the top of the first page). It is not the opinion of the court and does not have any legal effect.
Is the draft going to be the final opinion?
There is no way to know that right now. Drafts can change over time as the justices weigh in and try to reach consensus among at least a majority of five members. The final result and how each justice ends up voting could change over time. On Wednesday, Politico reported that so far no other drafts have yet been circulated within the Supreme Court, and no justices have yet changed their votes.
The questions asked by the justices during arguments in December showed that conservative members of the court were open to rolling back key parts of the two major abortion decisions at stake — Roe and 1992’s Planned Parenthood of Southeastern Pennsylvania v. Casey — if not reversing them outright. Roe established a core right to abortion. Casey reaffirmed that central principle while laying out a revised standard for judges to apply to decide if any future state efforts to restrict the procedure posed an unconstitutional “undue burden” on access.
Is abortion still legal?
Under Roe, abortion remains legal in at least some capacity throughout the United States, although the amount of access and extent of restrictions varies by state. The draft opinion reported by Politico does not change the status of any existing state laws.
In Texas, however, nearly all abortions have been banned since September, when SB 8, a bill that prohibits most abortions after fetal cardiac activity can be detected (which is typically around the sixth week of pregnancy), took effect after a majority of the Supreme Court declined to intervene amid pending legal challenges. Pregnancy terms are counted from the first day of a person’s most recent period, so six weeks is typically two weeks after a missed period, which is when many people first realize they might be pregnant. Early-term abortion bans are often referred to as “heartbeat” laws, but that term is misleading because a fetus’s heart valves haven’t formed at that point; an ultrasound detects electrical activity.
The Texas law delegates enforcement to private citizens, who are empowered to sue anyone they suspect of performing or aiding an abortion in the state. The threat of legal action has forced most abortion providers to stop providing services that would violate the law.
How did the Alito draft come about?
After the justices hear arguments, they meet for what’s known as a conference to discuss cases and take an initial vote. Because Roberts is the chief justice, if he is in the majority, he can assign another justice to write the opinion or do so himself; if Roberts is in the minority, the most senior justice in the majority makes the assignment. The justices then circulate and workshop drafts.
Politico reported that Alito and four members of the court’s conservative arm — Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — voted in favor of reversing Roe and Casey. Politico’s source was not clear on where Roberts landed. The court’s remaining three liberal members, Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan, are reportedly working on at least one dissent, according to Politico.
What happens now?
The Supreme Court finished hearing arguments for the current term, and it is expected to release all of its opinions in those cases by early July. The court doesn’t share in advance when it will announce a decision on a particular case. Opinions in especially high-profile and hotly contested cases tend to come last; they often require more time for the justices to craft an opinion and feature dissents from justices who want a chance to write in response to the majority’s analysis.
It is extremely rare for information to leak about how the court will rule in a case, let alone to see an entire draft opinion. Roberts even announced an investigation into the “betrayal of the confidences of the Court.”
What are the potential outcomes of the case?
The underlying case, Dobbs v. Jackson Women’s Health Organization, concerns a Mississippi law that bans nearly all abortions in the state after 15 weeks of pregnancy. When the court announced it would hear the case just over a year ago, it wasn’t clear if the justices would engage with arguments to overturn Roe and Casey outright. The key question at that point was whether any state ban on abortion could be constitutional if it applied before a fetus is viable, a term that refers to surviving outside of a person’s womb. Viability has long been an important factor in fights over state abortion restrictions; until now, courts considered it settled that bans before viability, usually around 24 weeks of pregnancy, weren’t constitutional.
The court could go with the drastic option outlined in Alito’s draft opinion to overturn Roe and Casey, leaving it up to each state to decide if they want to ban abortions or reaffirm the right to the procedure for their residents.
The court could leave Roe in place and reaffirm a basic right to abortion, but still side with Mississippi by doing away with viability as the bright line between abortion limits that are allowed and those that are not. The majority opinion might lay out some new standard for lower courts to apply. Republican-led states would likely continue to pass bans that kick in increasingly early in a person’s pregnancy and defend them against inevitable legal challenges as all sides sort out what the Supreme Court’s new precedent means in practice.
The court could rule against Mississippi and leave all of the existing precedent on the books, but Politico’s reporting indicates that is not likely.
What about Biden?
Shortly after the leak, Biden directed the Department of Health and Human Services, the White House Counsel’s Office, and the White House Gender Policy Council to put together a plan to protect reproductive rights in the face of the impending Supreme Court decision. On Wednesday, Reuters reported that his administration was considering using executive orders and guidance to federal agencies in order to increase and maintain abortion access. The options being considered reportedly included increasing access to medication abortions through the Federal Drug Administration and online prescribers, expanding Medicaid to cover travel expenses for people seeking abortions, and preparing the Department of Justice to defend abortion providers and people who undergo abortions in states that could outlaw the procedure.
However, the Washington Post spoke to members of the administration who said the White House knew its options to aid in the cause were limited, and that most of what they attempt will likely be challenged in court.
Senate Majority Leader Chuck Schumer told reporters on Tuesday that Biden was meeting with members of Congress and others in government to discuss all possible executive orders that could work to protect abortion access.
What happens if the court overturns Roe and Casey?
The legal precedent that has for years bound federal courts to strike down pre-viability abortion bans and state laws that otherwise placed an “undue burden” on abortion access will be gone. Thirteen states have abortion bans on the books — so-called trigger laws — that will immediately take effect once Roe is struck down, according to the Guttmacher Institute, and 13 more are likely to ban the procedure given the opportunity by the Supreme Court. There’s been a dramatic jump in anti-abortion bills making their way through statehouses across the country, and it’s not clear what options, if any, healthcare providers and abortion access advocates will have to challenge those in court.
States will also remain free to reinforce the right to abortion access within their borders if they choose. According to the Guttmacher Institute, 16 states and Washington, DC, already have such laws on the books.
What would abortion access look like then?
Abortions in states with only one abortion clinic already require immense resources by people who need them, including travel expenses and childcare. If the state laws banning the procedure are allowed to pass, then those clinics will likely shutter or stop providing abortions, and the need to travel across state lines — or sometimes across the country — will greatly increase. Abortion funds, grassroots organizations that help provide money and support to people seeking abortions, are already helping women drive or travel for their procedures. The reliance on their work in a post-Roe America would only increase, as the passing of these laws would most devastatingly affect low-income people and people with childcare needs and difficult work schedules who would find it hardest to afford or get the time off to travel long distances.
States where abortion is protected would become bastions of the procedures, and likely need to increase their infrastructure (more clinics, more doctors) to meet those needs.
At-home abortions using medication are already quickly becoming the most popular form of terminating a pregnancy in the US; this would only increase further. While anti-abortion state lawmakers are already separately trying to legislate this procedure as well — claiming, without merit, that it is unsafe — in December the FDA permanently lifted a major restriction on abortion pills, rendering them more accessible. Any new restrictions will likely isolate some people who undergo at-home abortions from help and support, rather than halt abortions altogether.
Medication abortion has a high success rate, has been widely medically tested, and is considered safe, as it has few incidents of hospitalization. However, like any medication, it is always safer to take it with the guidance of a medical professional, a service that legislation in conservative states is trying to restrict. Sites like Abortion on Demand send pills and abortion kits upon request; Aid Access is an international organization with doctors in Europe who prescribe a generic version of the abortion pill to people in the US; and services like the Miscarriage and Abortion Hotline exist to help people through the procedure as they conduct it on their own, and make sure they know what to look out for in the rare case they need medical attention.
In a few cases in the past, courts have subpoenaed online activity related to people seeking abortions, and it is possible these issues will increase if the procedure is criminalized. However, it is possible to take thorough precautions to protect your data if you are seeking an abortion.