CLEVELAND — Legal analysis: If the leaked United States Supreme Court draft opinion on abortion access is adopted by the majority of the nation's highest court, Ohio would almost certainly be among dozens of states to quickly (if not immediately) make abortion illegal.
The draft opinion in the case of Dobbs v. Jackson Women’s Health Organization, written by Justice Samuel Alito and obtained by Politico, shows language that would clearly overturn the landmark abortion rights case of Roe vs. Wade if Alito has the support of a majority of the court, like the draft suggests.
Under Roe, which is still the law of the land at this time, the choice to terminate a pregnancy is considered an implied fundamental right under the US constitution. With the decision in 1973, it was guaranteed that abortion must be legal even though it can be restricted to varying degrees by each state.
The way Alito's draft opinion is written, however, creates the opportunity for Ohio's Republican-controlled legislature to push through a "trigger law," which has been laying in wait and is intended to immediately make abortion illegal upon the downfall of Roe.
Ohio's version of a "trigger law" is called The Human Life Protection Act, House Bill 598. It has not yet been passed and signed into law, but it is pending in our legislature. It would make it a crime for doctors to perform abortions, with no exceptions for conceptions by rape or incest.
Further, Ohio has already passed a so-called "heartbeat" law, Senate Bill 23, which calls for outlawing abortion once a fetal "heartbeat" can be detected. This can happen as early as six weeks after conception, before a person may know they are pregnant. While this law is currently on hold due to constitutional challenges based on the holding in Roe, overturning Roe would mean those challenges fail and the law would be able to immediately take effect.
While this is a scenario that abortion rights activists are dreading and preparing for, it's important to remember that the draft opinion in the Dobbs case is in fact only a draft at this point, and there are several possible scenarios that could play out between now and when the final opinion in published in June or July.
While we don't know the motivation of the person who leaked the draft, we do know that writing these drafts is part of the process of deciding every case before the Supreme Court. We don't usually get a peek into this part of the decision, and once these drafts are written, a lot can change.
One possibility is that Alito actually doesn't actually have the support of four justices. In that case, Roe would still remain intact.
Another possibility is four more justices agree with Alito about upholding the Mississippi law at the root of the Dobbs case and it's 15-week restriction abortion, but the justices don't agree on the reasoning. In that scenario, there would be no true majority opinion, allowing for the court to uphold Roe.
It is also possible that the draft opinion gets published as it is, with the four reported justices agreeing, and Roe gets struck down, removing constitutional protection for access to abortion.
It's that scenario where Ohio would then join dozens of states, including Michigan, Kentucky and West Virginia, in virtually if not entirely outlawing abortion.
Here's an important takeaway from this situation. Whether you agree or disagree with the possibility of abortion rights being overturned, it's important to know the possible results. It's also important to know what our representatives at the state and local level are doing in the name of serving our interests.
Remember, our state legislators work for us, and their performance reviews are our votes, which is a very timely reminder on this primary election day.
Stephanie Haney is licensed to practice law in both Ohio and California.
The information in this article is provided for general informational purposes only. None of the information in this article is offered, nor should it be construed, as legal advice on any matter.