Dozens of states may restrict abortion almost immediately should Supreme Court uphold Mississippi ban

Some state "trigger laws" could ban abortion immediately.

May 4, 2022, 12:04 PM

A draft of the Supreme Court majority opinion on the pending Mississippi law case was leaked to Politico on Monday night. According to the document, the justices appear to have voted to effectively overturn the nearly 50-year abortion precedent set in Roe v. Wade.

In December, the justices heard historic arguments over a Mississippi law that would ban most abortions after 15 weeks of pregnancy. The case, Dobbs v. Jackson Women's Health, asks the justices directly to reconsider the precedent set by Roe v. Wade and Planned Parenthood v. Casey.

PHOTO: Members of the Supreme Court pose for a group photo at the Supreme Court in Washington, D.C, April 23, 2021.
Members of the Supreme Court pose for a group photo at the Supreme Court in Washington, D.C, April 23, 2021.
Erin Schaff/Pool/Getty Images, FILE

This means that the justices have the real opportunity to lessen the right to an abortion or possibly overturn the landmark case that made abortion a federally protected law since 1973.

The 98-page leak draft opinion was written by conservative Justice Samuel Alito. In the draft, the majority vote only has five conservative justices, including Alito. Chief Justice John Roberts is not included among the justices apparently voting to overturn Roe v. Wade, but he confirmed on Tuesday in a press release that the document is "authentic," but does not represent a decision or a final position of any member.

He also announced an investigation into the leak.

“To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed. The work of the Court will not be affected in any way,” said Roberts in the release.

Legal scholars are raising the alarm that if the court should decide to uphold the Mississippi ban, it could clear the way for new restrictions on abortion across the U.S.

ABC News legal analyst Kate Shaw, a professor at Cardozo Law School, told ABC News' "Start Here" that as many as 30 states would restrict abortions if Roe gets overturned.

"It's certainly possible that there will be a majority of justices on board to just overturn Roe and Casey and rule that the Constitution doesn't protect a right to terminate a pregnancy," Shaw said. That would leave each state to decide for itself, and "a number of states already have laws on the books that go into effect immediately."

PHOTO: Protesters, demonstrators and activists gather in front of the U.S. Supreme Court as the justices hear arguments in a case about a Mississippi law that bans most abortions after 15 weeks, on Dec. 1, 2021 in Washington, D.C.
Protesters, demonstrators and activists gather in front of the U.S. Supreme Court as the justices hear arguments in Dobbs v. Jackson Women's Health, a case about a Mississippi law that bans most abortions after 15 weeks, on Dec. 1, 2021 in Washington, D.C.
Chip Somodevilla/Getty Images

According to a report from The Guttmacher Institute, 13 states have these so-called trigger laws, some of which include bans on abortion after six or eight weeks of pregnancy, effectively banning all abortions. Several other states without trigger laws, according to Shaw, would likely "move very quickly" to prohibit abortion should Roe be overturned. Overall, 26 states are certain or likely to ban abortion if the Supreme Court weakens or overturns Roe v. Wade, per Guttmacher.

PHOTO: Members of the Supreme Court pose for a group photo at the Supreme Court in Washington, D.C., April 23, 2021.
Members of the Supreme Court pose for a group photo at the Supreme Court in Washington, D.C., April 23, 2021. Seated from left: Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor. Standing from left: Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett.
Erin Schaff/Pool via Getty Images

Shaw said she believes that the court could reach a compromise solution that still would allow Mississippi to enforce its 15-week, and even though that also "would be a dramatic change in the constitutional law of abortion, but that they do that without overturning Roe and Casey, simply suggesting that Roe and Casey undervalued the state's interest in protecting potential life, and thus that this viability line should be reconsidered."

Such a ruling could give states more power to restrict abortions, Shaw continued, "but it would not allow them to prohibit or criminalize all abortions."

This report was featured in the Wednesday, Dec. 1, 2021, episode of "Start Here," ABC News' daily news podcast.

"Start Here" offers a straightforward look at the day's top stories in 20 minutes. Listen for free every weekday on Apple Podcasts, Google Podcasts, Spotify, the ABC News app or wherever you get your podcasts.

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