If the U.S. Supreme Court does in fact overturn Roe v. Wade, following a bombshell report from Politico suggesting the possibility, what would that mean for Illinois and the state’s abortion laws?
If the U.S. Supreme Court does in fact overturn Roe v. Wade, following a bombshell report from Politico suggesting the possibility, what would that mean for Illinois and the state's abortion laws?
According to the report released Monday, a draft opinion suggests the high court could overturn the landmark case that legalized abortion nationwide.
A decision to overrule Roe would likely lead to abortion bans in roughly half the states and could have huge ramifications for this year's elections. But it's unclear if the draft represents the court’s final word on the matter — opinions often change in ways big and small in the drafting process.
Here's what we know so far.
What do we know about the draft opinion?
The reported draft opinion in effect states there is no constitutional right to abortion services and would allow individual states to more heavily regulate or outright ban the procedure.
“Roe was egregiously wrong from the start,” the draft opinion states. It was signed by Justice Samuel Alito, a member of the court’s 6-3 conservative majority who was appointed by former President George W. Bush.
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NBC News has not obtained a copy of nor confirmed the authenticity of the draft. A Supreme Court spokeswoman said the court had no comment.
Politico said only that it received “a copy of the draft opinion from a person familiar with the court’s proceedings in the Mississippi case along with other details supporting the authenticity of the document.”
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“We hold that Roe and Casey must be overruled,” it states, referencing the 1992 case Planned Parenthood v. Casey that affirmed Roe’s finding of a constitutional right to abortion services but allowed states to place some constraints on the practice. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
Whatever the outcome, the Politico report represents an extremely rare breach of the court’s secretive deliberation process, and on a case of surpassing importance.
What comes next for the Supreme Court?
The document was labeled a “1st Draft” of the “Opinion of the Court” in a case challenging Mississippi’s ban on abortion after 15 weeks, a case known as Dobbs v. Jackson Women’s Health Organization.
The court is expected to rule on the case before its term ends in late June or early July.
Votes and opinions in a case aren't final until a decision is announced or, in a change wrought by the coronavirus pandemic, posted on the court's website.
What would such a ruling mean for Illinois?
Illinois has "very strong pro-reproductive rights laws," Carolyn Shapiro, professor of law and co-director of Chicago-Kent College of Law’s Institute on the Supreme Court of the United States, told NBC 5 last fall when the Supreme Court allowed a new Texas law that bans most abortions.
Illinois Gov. J.B. Pritzker signed into law in 2019 legislation expanding abortion rights across the state.
The Reproductive Health Act rescinded prohibitions on some late-term abortions and 45-year-old criminal restraints such as criminal penalties for doctors performing abortions.
The restrictions adopted after the 1973 U.S. Supreme Court decision in Roe v. Wade that legalized abortion have never been enforced in Illinois because of court injunctions.
Sponsors of the Reproductive Health Act warned at the time that its protections would be necessary should the landmark Roe v. Wade decision be overturned.
Pritzker also repealed the Parental Notification Act in 2021, allowing pregnant minors to choose whether or not a legal guardian or family member is involved in their decision. Supports of the move said the repeal "protected the most vulnerable youth - such as victims of rape, incest, and domestic abuse – from being compelled to notify their abusers."
Following the latest news of the potential SCOTUS decision, Pritzker vowed to continue to protect women's rights in the state.
“The terrifying implications of this decision and what it means for millions of women across the country cannot be understated,” he said. “But let me be clear- no matter what atrocity of an opinion the Supreme Court officially rolls out this summer in regards to Roe versus Wade – abortion will always be safe and legal here in Illinois. Illinois is and will remain a beacon of hope in an increasingly dark world. I will fight like hell – not just for the women who call Illinois home, but every person in every corner of this country who deserves to live a life of their own design.”
But Shapiro noted that if Roe v. Wade is overturned and Congress debates the possibility of a nationwide abortion restriction, then the impacts could be felt in Illinois.
"If there are national efforts to change the law in Congress to impose different types of abortion bans - as Congress did with what they call the partial birth abortion ban, which the Supreme Court upheld - they could then... that would obviously have enormous effects here in Illinois and would be quite frightening," Shapiro said.
In recent years, Illinois has seen an influx of patients traveling to the state to seek reproductive care, Pritzker said.
According to data from the Illinois Department of Public Health, 7,534 nonresidents received abortions in Illinois in 2019, compared with 2,970 in 2014 and 5,528 in 2017.
"This is not an assurance that Illinois will always be a pro-choice state," Pritzker said. "If the wrong people are elected to office, people who are against women's rights get elected to office, if the legislature turns Republican or the governorship turns Republican, we will end up being an anti choice state."
What would it mean for other states?
If the U.S. Supreme Court follows through on overturning the landmark 1973 Roe v. Wade case that legalized abortion nationwide, it would immediately split the country into states with abortion access and those that outlaw it.
Some states had already been preparing for the potential that the high court could weaken or overturn Roe, but the bombshell leak of the draft opinion appeared to accelerate that drive Tuesday, setting the country on course for an even more jumbled landscape of abortion rights even before the court actually issues its ruling.
About half of U.S. states are already expected to ban abortion if Roe falls, according to the abortion-rights think tank Guttmacher Institute. Twenty-two states, largely in the South and Midwest, already have total or near-total bans on the books. Aside from Texas, all are now blocked in court because of Roe.
Thirteen states have so-called trigger laws that would immediately ban abortion if Roe is overturned and would presumably go into effect if the Supreme Court majority votes for the draft in late June or early July.
One is Arkansas, where Republican Gov. Asa Hutchinson called the leak “reprehensible” and called for an investigation while backing the draft opinion. Alabama Gov. Kay Ivey said the leak was an “outrageous” attempt to manipulate the court and called for prayer that the justices would "remain steadfast." In Texas, Attorney General Ken Paxton said he'd continue to “pray for the end of abortion access across our nation.”
Mississippi would also automatically ban abortion and the owner of the state's only clinic said she'd close if the draft opinion is adopted. “You put four people on the court who said they’re going to overturn Roe — that’s why they were put on. When you do that, I don’t know how you’re surprised when that’s going to happen,” said Diane Derzis.
A few states still have pre-Roe bans on the books, including Michigan, where Democratic Gov. Gretchen Whitmer has sued to remove it and pledged on Twitter Monday to “fight like hell to make sure abortion remains safe, legal, and accessible.”
The Kansas Supreme Court in 2019 declared that the state constitution protects abortion rights, but Republican lawmakers placed on the August primary ballot an initiative to overturn it.
Eight GOP-led states have already passed new restrictions this year, expecting change from the conservative majority on the high court. Arizona and Florida banned the procedure after 15 weeks, without exceptions for rape or incest. Others, like Oklahoma, went further and made it a felony as of this summer to perform an abortion, with an exception only for the life of the mother.
Idaho followed Texas and allowed people to sue over abortions — including potential family members of the embryo.
“Decades of steadfast prayer and unwavering legislative efforts to protect the lives of the unborn are finally on the doorsteps of success," Oklahoma House Speaker Charles McCall, a Republican, said Tuesday. “The seemingly imminent overturning of Roe v. Wade justifies the long battle by Oklahoma House Republicans and pro-life allies nationwide to return this matter to the duly elected representatives of state legislatures to decide.”
Sixteen states and the District of Columbia, meanwhile, have protected access to abortion in state law, and eight states moved to expand or strengthen those protections this year.
States like Washington and Connecticut, meanwhile, have protected abortion providers in their states from lawsuits.
The Democratic leaders in Connecticut’s statehouse, which over the weekend sent legislation to that state’s governor that would protect abortion providers, said in a joint statement Monday night they had feared a proposed decision like the one in the draft opinion and “now this nightmare appears to be all too real.”
“America is likely headed down a dark path where individual states will adopt conflicting statutes leading to additional divisions in an already divided nation,” Senate President Pro Tempore Martin Looney and Senate Majority Leader Bob Duff said.
Democratic New York Gov. Kathy Hochul said her state would “welcome with open arms” those who need access to abortion.
In Hawaii, state Sen. Roz Baker, a Democrat, questioned what more the ruling, if supported, could bring.
“Are they going to go back and go after the LGBTQ community next?” she said. “Are they going to go after immigrants? Are they going to go after any of the vulnerable populations?”
In some cases, abortion laws may divide states as well.
GOP-led Tennessee also has a trigger law banning abortion if Roe is overturned, but Nashville’s district attorney on Monday tweeted that he would not prosecute any doctor who performed an abortion.
What has the political reaction to the news been?
A decision overturning Roe would raise the stakes for voters in November’s heated midterm elections, and may hand Democrats a political weapon to court centrist voters in congressional races in swing states.
President Joe Biden said Tuesday that a woman's right to have an abortion is "fundamental" and urged the court not to overturn Roe v. Wade.
In a statement responding to a leaked draft opinion suggesting the high court may overturn the landmark decision, Biden reiterated his belief that a "woman's right to choose is fundamental, Roe has been the law of the land for almost fifty years, and basic fairness and the stability of our law demand that it not be overturned."
While emphasizing that he couldn’t speak to the authenticity of the draft, Biden said in a statement his administration is preparing for all eventualities for when the court issues its ruling. Biden noted the administration's Gender Policy Council and White House Counsel's Office have been preparing options for a response, "under a variety of possible outcomes in cases pending before the Supreme Court," since the passage of Texas' restrictive abortion law.
"We will be ready when any ruling is issued," Biden said.
What are other Illinois officials saying?
Though it's not yet clear if the draft represents the court’s final word on the matter, other state officials have also reacted to the news.
Chicago Mayor Lori Lightfoot says that the decision would "set our country back decades," and condemned the report.
"What we're seeing tonight on Roe v. Wade is a horrendous attack on our fundamental right to choose, and we will fight against it with everything we've got," she said on Twitter. "You have my word: I will do everything I can to guarantee your right to an abortion."
Republican gubernatorial candidate Jesse Sullivan said he felt "prayerful gratitude and unbridled optimism" after the report was released:
"While the decision isn't official, and could yet be months away, I'm overjoyed at what could be a generational change in the soul of our country," he said in a statement. "Prayer works, and my prayer tonight is gratitude."
Republican Rep. Mary Miller also praised the ruling in a tweet.
"'Before I formed you in the womb I knew you, before you were born I set you apart; I appointed you as a prophet to the nations,'" she tweeted, quoting Jeremiah 1:5. "Pray for life!"
Democratic Rep. Mike Quigley and others are calling for the Senate to step in.
"This is utterly shameful but we can stop it. The Senate MUST end the filibuster and codify Roe."
"I do not care how unprecedented or inappropriate this leak is, what's critical here is how we act," U.S. Representative Marie Newman said in a statement. "It is way past time for the Senate to codify Roe V. Wade. The House passed the Women's Health Protection Act earlier this year and now our senators have a fundamental obligation to get this done. There is no time to waste. Reform the filibuster and pass this bill immediately."
