A Supreme Court reversal of Roe v. Wade won't stop the abortion wars

Almost 50 years after the Supreme Court ruled that women had a constitutional right to an abortion, a nation struggling to find common ground and keep stable its very institutions of governing is facing yet another major political upheaval.

A draft opinion in a lawsuit challenging a Mississippi law prohibiting abortion after 15 weeks of pregnancy reveals that a majority of justices are willing to overturn Roe v. Wade, the landmark 1973 decision which held that states could not ban the procedure before fetal viability. On Tuesday, Chief Justice John G. Roberts acknowledged that a document published by Politico Monday evening was authentic, but that it was not a ruling by the court, nor did it represent the final decision of any justice. Why the early draft by Justice Samuel Alito was leaked is unknown, but it suggests efforts to influence the outcome of the case. Such a breach of trust at the court is a troubling undermining of its legitimacy. 

At the dawn of Roe, efforts were underway in states such as New York to decriminalize abortions, ending the threat of prosecution for doctors and midwives who performed them and providing women access to safe medical procedures. But there was little national consensus on legalization. The shock of the 7-2 ruling led to the rise of the national Right To Life movement and the start of our debilitating culture wars, as well as the drive to reverse the ruling. Alito's draft reflects the triumph of a conservative legal philosophy that regards cases like Roe as dangerous judicial legislating. This view holds that the right to have an abortion, and whether that right should be balanced against the state's interest in protecting potential life, is a policy preference to be decided at the ballot box.

In contrast, a liberal judicial philosophy holds that there is a moral imperative in the Constitution to protect such basic individual liberties and that the Supreme Court should be the guarantor of them. There now seems to be only three justices on the court who firmly take that view.

Certainly, the Supreme Court can change precedents. The court has been wrong in the past, especially involving matters of race. But generations of women and their families have relied on Roe to protect their decisions to end a pregnancy. Polling through the years shows steady majority support for Roe and opposition to it being overturned. A Washington Post-ABC News survey in late April found that respondents by a 2-1 margin said Roe should be upheld. If Alito's draft stands, access to abortion will determined by where you live and by your financial ability to travel to a state where the procedure is legal.

A radical Supreme Court decision in 1973 that established a constitutional right to terminate a pregnancy likely will be undone by a radical decision that such a right no longer exists. All that is certain is that the abortion wars will continue.