President Joe Biden delivers remarks on the on-going conflict at the Ukraine/Russia border, Tuesday, February 15, 2022, in the East Room of the White House in Washington, D.C. Credit: Official White House Photo by Cameron Smith

A leaked draft Supreme Court opinion, indicating a possible upending of Roe v. Wade, the constitutional right to abortion, has set off a wave of reaction, almost knocking the war in Ukraine off the headlines. President Biden believes that the draft—and it’s by no means a final decision—has ramifications beyond undoing a woman’s right to choose, that it ramifies and threatens “a whole range of rights.”

Biden said: “It’s really quite a radical decision. It’s a fundamental shift in American jurisprudence.” Moreover, he added on Tuesday before departing for Alabama to tour a defense production facility, “Every other decision based on the notion of privacy is thrown into question.” He concluded the decision “goes way overboard” on the matter about the moment of conception.

His remarks were consistent with those in a joint statement in January with Vice President Harris on the 49th anniversary of the decision, noting that Roe v. Wade “is under assault…We must ensure that our daughters and granddaughters have the same fundamental rights that their mothers and grandmothers fought for and won.”

The draft of the majority opinion was released to reporters at Politico who published it, after its authentication by Chief Justice John Roberts. As to who and how it was leaked that remains unclear, though it was apparently written by Justice Samuel Alito. It is a decisive repudiation of the landmark decision, stating, “We hold that Roe and Casey must be overruled. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” Contrary to this finding, a recent poll suggests that the majority of people believe the decision should be codified.

There are several interesting arguments in the opinion and one that resonates for Black Americans is the extent to which the decision, which Alito said was “egregiously wrong” is merged with other longstanding court decisions, including Plessy v. Ferguson that remained the law until it was overturned in 1954 by the Brown v. Board of Education school desegregation ruling.

Alito quoted Justice Brett Kavanaugh, liking Plessy to Roe as wrong “the day it was decided.” In a footnote he posits that some advocates of abortion rights were also in the camp of eugenics, which sought to increase inheritable characteristic they regarded as desirable. “Some such supporters have been motivated by a desire to suppress the size of the African American population,” Alito writes. “It is beyond dispute that Roe has had that demographic effect. A highly disproportionate percentage of aborted fetuses are Black.”

Even as the debate grows about the draft, Justices Sonia Sotomayor, Elena Kagan, and Stephen Breyer, who will be replaced upon his retirement by Justice Ketanji Brown Jackson, are working on one or more dissenting opinions. If the vote were to occur now, it would be five justices favoring the opinion with no indication of how Chief Justice Roberts would vote.

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