"What I worry about is that women will die": Leaked SCOTUS opinion prompts concern over reproductive rights in Arizona

Jeremy Beren

U.S. Senate Democrats arrive for a news conference about the leaked Supreme Court draft decision overturning Roe v. Wade in Washington, D.C.Kent Nishimura / Los Angeles Times via Getty Images

By Jeremy Beren / NewsBreak Pinal County, AZ

(Phoenix) — Political journalism outlet Politico on Monday obtained a 98-page draft opinion penned by U.S. Supreme Court Justice Samuel Alito, suggesting that the United States' highest court has already voted to overturn the 49-year-old Roe v. Wade decision this summer.

The landmark 1973 ruling holds that the U.S. Constitution protects a woman's right to safely undergo an abortion if she chooses. The decision nullified many state and federal laws that outlawed the procedure at the time. But in recent years, with the Supreme Court now leaning conservative after multiple new appointments, states have started to challenge Roe v. Wade — and might soon be successful, if Alito's draft opinion serves as any indication.

"Women have been paid less, objectified, seen as second-class citizens, and yesterday we were potentially deemed unfit to determine what happens to our own bodies ... this is not a step forward but a step backwards that delegitimizes a woman's autonomy and will impact our communities of color, low-income families, and women everywhere," Pinal County Democrats Chair Lisa Sanor said Tuesday in response to the draft opinion.

Alito, a conservative originalist justice who has been on the Supreme Court bench since 2006, wrote in the document labeled as a "1st Draft" that Roe v. Wade has failed to produce what was intended — an end to a national conversation about abortion.

"Far from bringing about a national settlement of the abortion issue, Roe and (Planned Parenthood v. Casey) have enflamed debate and deepened division," he wrote.

Supreme Court Chief Justice John Roberts on Tuesday confirmed that Alito's draft is authentic, and that an investigation is underway to determine how the opinion made its way out of the judge's chambers.

“Court employees have an exemplary and important tradition of respecting the confidentiality of the judicial process and upholding the trust of the Court. This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here," Roberts said.

However, the mere fact that Alito's opinion has emerged publicly is not what has lawmakers and activists fretting.

"Why someone wants an abortion is a personal decision that is none of your business," LD-26 Representative Athena Salman tweeted Monday night. "Government mandating birth against a person’s will is violent and wrong, period."

One interpretation of the draft opinion holds that if the Supreme Court officially overturns Roe v. Wade in the coming weeks, the Court then no longer maintains that the U.S. Constitution protects Americans' right to privacy. This could lead to fresh challenges on other rulings that have decided issues like contraceptive usage (Griswold v. Connecticut), interracial marriage (Loving v. Virginia), same-sex marriage (Obergefell v. Hodges), or forcible sterilization (Skinner v. Oklahoma).

"If this draft opinion is the opinion from the United States Supreme Court, we have just seen the total undermining of every privacy case that Americans have come to rely on," Maricopa County Attorney candidate Julie Gunnigle told NewsBreak in an exclusive interview.

Current Maricopa County Attorney Rachel Mitchell, who interrogated current Supreme Court Justice Brett Kavanaugh during his 2018 confirmation hearings, spent decades working in the MCAO's sex crimes division. If Alito's draft opinion ultimately becomes the law of the land, Mitchell is expected to pursue the harshest-possible sentences — provided she stays on next year as Maricopa County's top prosecutor.

"What she's already told us is that she will enforce every law, every time," Gunnigle said. "Anybody who knows the criminal legal system knows that is a) not possible, but b) is a gross misunderstanding of what her office is tasked to do. Her office is tasked to do justice, and that means prioritizing cases that matter."

Gunnigle has opted for a different approach. She has affirmed on a number of occasions that a County Attorney's office under her direction will not enforce any kind of abortion ban, nor will it pursue felony charges for women who undergo the procedure.

"I will never criminalize someone for making private, personal decisions about their own body. That is because government does not belong in these intimate spaces, and in doctors' offices," Gunnigle said. "That space is for families and physicians alone.

"What I worry about is that women will die because of this ruling," Gunnigle continued. "There will be victims of rape and incest, there will be people suffering through painful miscarriages who are now going to have to either cross borders or suffer through unlicensed and frankly dangerous procedures in their quest just to care for their own bodies."

Gunnigle's hope is that substantial collective pressure on federal lawmakers will be enough to convince a Democratic-majority Congress to codify Roe before the Supreme Court's ruling can be confirmed. But collective outrage alone may not be enough, with Gunnigle expressing concern that the Arizona Legislature could introduce bills similar to the 15-week abortion ban that Gov. Doug Ducey signed into law earlier in this legislative session.

"There are advocacy opportunities everywhere," Gunnigle said. "It matters to call, it matters to advocate, but what really matters are elections, and we're seeing the consequences of elections in this ruling. People need to get out and knock on doors for candidates who are going to preserve their right to reproductive healthcare, and abortion in particular."

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Jeremy is a freelance journalist covering health, energy, labor, and local politics. Reach him at jeremy.beren@newsbreak.com.

Phoenix, AZ

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