Does anyone have a really good answer for what happens, should the Roe v. Wade becomes rescinded or overturned?
I keep hearing that anywhere from 13 to 26 states, it will immediately become illegal.
I find that hard to believe that - after fifty some years of legality - it would become illegal overnight. The only case in history of this magnitude where I know of something becoming legal or illegal LITERALLY overnight - is Prohibition. Everything else the government does usually phases in or has a lead time. That being the case, it seems logical that some state legislatures may change their laws.
It's my gut feeling that NOTHING SUBSTANTIAL will change. The BIG difference will be a very few states. And that is it. My own daughter asked "why do they want to totally outlaw abortion?" - a subject we have never discussed at home, so she's only getting it from school, either through teachers or friends.
It does not surprise me at all that abortion proponents are going nuts and suggesting that all hell will break loose, people will die, back alley abortions and amateur ones done with coat hangers will flourish, babies will be born and either trafficked or cut up for organs (as if that doesn't ALREADY HAPPEN even with abortion legal).
I just don't see catastrophe. I think only Y2K in my lifetime had more Chicken Littles declaring the end of the world.
If the Supreme Court flatly overturns Roe v Wade and Planned Parenthood v Casey, abortion will become illegal in 13 states immediately. Most of those states will have an exception for the life of the mother, but most won't have any other exceptions.
It will become illegal in 5 more states fairly quickly, either 30 days later or 5 days later or when a specified body certifies that the state's ban is to take effect. In most of those states there will be exceptions for rape and incest as well as for the life of the mother.
In 4 other states bans on abortions after 6 weeks (or detected heartbeats), which are currently enjoined, will go into effect.
That is - by my admittedly fallible count - a total of 22 states in which abortions will, without new legislation, be banned or banned after 6 weeks with varying, but limited, exceptions. I think it's likely that a handful of other states will, before long, pass new legislation banning abortion or banning abortion after something like 6 weeks.
That said, while the leak of Justice Alito's draft opinion is pretty significant, I think many are making more of it than we should - or, at least, more than we definitively can. I think some nuance regarding the way the Court works is lost and unwarranted assumptions have been made.
Before the leak, I'd have handicapped an outright overturning of Roe as quite possible but not particularly likely - maybe a 3:1 proposition. I'd have handicapped a trimming of Roe, about enough to uphold the Mississippi law at issue, as something like 1:3 though - fairly likely to happen. Based on the leaked opinion I'd shift those odds some, to something like 1:1 for an outright overturn and very likely for enough trimming to uphold the Mississippi law. In other words, I would be surprised if the Mississippi law is struck down and I wouldn't be surprised if Roe is outright overruled, but I also wouldn't be surprised if it is only trimmed some.
The leaked opinion is a first draft. So there's nothing saying that all of the Justices that initially voted in the majority on the outcome of the case (i.e. that the Mississippi law would be upheld) agree with its reasoning. Some no doubt think Roe should be overturned. But some others might think Mississippi should win even while they don't think Roe should be completely overturned. I'd possibly put Chief Justice Roberts and/or Justice Kavanaugh in the latter category.
They would have taken a vote and if the result was that Mississippi wins, writing of the Court's opinion would have been assigned to one of the Justices that voted that way - either with or without guidance on the reasoning that would be accepted by everyone in the majority. At that point the assigned Justice (in this case, Justice Alito) would write the first draft of the opinion. Maybe he writes the opinion that he wants, hoping that enough other Justices will more or less agree with that reasoning and it won't have to be dramatically changed in order to hold a majority. Or maybe he writes the opinion that he wants realizing that it won't hold a majority, and that he'll later have to change the reasoning dramatically (e.g., such that Roe isn't completely overturned) in order to hold a majority - e.g., because otherwise he'd lose the Chief Justice or Justice Kavanaugh or both as they wouldn't be willing to go so far as to completely overturn Roe.
The point is, the leaked opinion doesn't necessarily tell us that a majority of the Court is willing to overturn Roe - or even that a majority initially voted that way. (If they did, it's still possible that they have already or will later change they're mind. To get a majority decision you have to find reasoning that a majority is, in the end, willing to join; an initial majority vote one way or another isn't enough.)
What we probably do know from the leaked draft opinion is (1) a majority of the Justices voted for Mississippi to prevail and (2) Justice Alito would, if he could, overturn Roe and Casey. It's safe to assume that others in the initial majority would be willing to join Justice Alito in doing that. But would 4 others? Specifically, would the Chief Justice and/or Justice Kavanaugh? We can speculate on that, but the leaked draft opinion doesn't necessarily tell us the answer.
If I had to bet now, I'd probably bet that Roe ultimately is overturned when the Dobbs opinion is issued. But I think it's still close to an even money bet. And would it be 6-3 or 5-4? If the latter, will it be with Chief Justice Roberts joining or with Justice Kavanaugh joining? And if Roe isn't ultimately overturned, did one or both join the majority when it came to outcome (i.e. that Mississippi prevails) while disagreeing about reasoning (i.e. on whether Roe should be completely overturned)? Or did one or both change their mind somewhere along the way? Does the timing of the leak - well after the first draft was initially circulated and likely after a newer draft has been circulated - have something to do with a Justice changing their mind or not being willing to go along with the reasoning?
Another thought I have, if the Chief Justice initially voted with the majority, would he have assigned the opinion to Justice Alito? I might have expected him to keep it for himself to write - especially if he wasn't willing to go along with completely overturning Roe. So maybe he wasn't in the majority? Or maybe he is willing to go along with completely overturning Roe? If he wasn't in the majority, that would mean that Justice Thomas would have been the one to assign the opinion to Justice Alito. I can more easily see Justice Thomas assigning the opinion to Justice Alito (rather than keeping it for himself) as they're more likely to agree on the basic reasoning - i.e., that Roe and Casey should be overturned.
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