AN UNPRECEDENTED LEAK IN THE UNITED STATES SUPREME COURT

Last week American politics took yet another radical turn toward polarization and against women’s rights. News of a Supreme Court draft opinion shook the political establishment. Leaked by an unknown actor and published on May 2nd by Politico, the draft aims to overturn Roe V. Wade, the 1973 landmark ruling enshrining abortion as a constitutional right. Observers have noted how the Supreme Court’s current constitution—a six-to-nine conservative supermajority, cemented after Donald Trump’s three appointments—has placed a woman’s right to choose in the gravest danger in more than five decades.

                For pro-life campaigners, this is the result of decades-long efforts to shape the American judicial apparatus by appointing conservative judges at all levels up to the highest court in the land. The leaked draft, authored by the arch-conservative Justice Samuel Alito, pertains to Dobbs v. Jackson Women’s Health Organization, the case that is now widely believed will seal the fate of abortion in the United States. It results from a 2018 ban in the state of Mississippi prohibiting terminations after a fifteen-week gestation period, a stage where many women can’t for sure tell if they’re pregnant or not. Most judicial analysts had concluded that the conservative court would uphold Mississippi’s ban without completely abolishing Roe, owing to the incrementalism favored by Chief Justice John Roberts.

                Yet the Alito draft completely shatters that hope. “Roe was egregiously wrong from the start,” he writes in the leaked opinion. “Its reasoning was exceptionally weak, and the decision has had damaging consequences.” His goal is to wield the conservative majority’s overriding power and erase more than fifty years of legal precedent. The draft states that abortion restrictions “must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate interests.” If Roe goes, each state will be completely free to not only pile on abortion restrictions—as pro-life groups have successfully done in recent years—but to outright ban pregnancy terminations under any circumstance.

                As a result, the United States might end up looking like a patchwork of jurisdictions with varying degrees of abortion access, with perhaps half of the states opting for harsh bans. Such a scenario would affect not only women living in conservative states; given that women healthy and wealthy enough to travel to liberal states to terminate a pregnancy will likely do it, this will lengthen waiting times for everyone seeking reproductive healthcare. In 2019, 23.8 abortions were performed per 1000 non-Hispanic black women, compared with 11.7 for Hispanic women and just 6.6 for white women, according to data compiled by the Center for Disease Control and Prevention. A more prohibitionist abortion outlook, then, will pile on the already vast health inequalities in the United States.

                The imminent removal of Roe won’t only bring the United States to the situation prior to 1973. As Michelle Goldberg has argued in the New York Times, women were rarely prosecuted for abortion before the ruling. But now, with decades of state-level laws awarding fetuses legal personhood, Roe was the one thing standing in the way of an onslaught of prosecutions. This is where, however improbable, a readymade comparison between the United States and El Salvador becomes self-evident. For more than two decades, Salvadorans have had the dubious privilege of living in a country with one of the world’s most infamous abortion regimes: terminations are not allowed, even if the child is the product of rape or incest, or where the health of the mother is at risk. Women, often poor and lacking basic education, have been prosecuted and jailed after spontaneous abortions resulting from accidents or beatings.

                Take the case of Manuela, a 33-year-old mother of two from a rural community, who had a miscarriage in 2008 and sought hospital care only to be handcuffed and accused of aggravated homicide. She was sentenced to thirty years in prison and died of cancer while in jail. And her case is far from unique; rights groups aver that in the last two decades 181 women undergoing obstetric emergencies have been prosecuted.

                This story has more than a passing resemblance to that of Lizelle Herrera, the 26-year-old Texan arrested and charged with murder after an alleged self-induced abortion. She spent two days in jail when, following national uproar, the local district attorney reluctantly concluded she had committed no crime. Her travails are directly related to SB 8, a Texas law that effectively bans abortions after six weeks of pregnancy. Enforcement of this particularly egregious law relies on “any person, other than an office or employee of a state or local government entity” to sue abortion providers or anyone who “aids or abets the performance or inducement of abortion.” According to the law, if the lawsuit holds the plaintiff must be awarded a $10,000 bounty, paid by the person they sued.

                This unusual setup was conceived to avoid the federal constitutional challenges usually brought against state officers enforcing a contentious statute. But since the Supreme Court upheld SB 8 last September, it has established a precedent all but allowing vigilante justice—not unlike the kind prevailing in the maternity wards of Salvadoran hospitals. In this context, the Alito draft is only the latest iteration of this Supreme Court’s ideological extremity as it gets tantalizingly close to dismantling reproductive rights. The Alito draft vows to “include respect for and preservation of prenatal life at all stages of development.” Such language could conceivably be deployed against forms of birth control, like the pill and the IUD, that can prevent the implantation of fertilized eggs.

                And while that remains a distant prospect, it moves the United States closer to a country like Honduras, where the first female president is struggling to deliver on campaign promises to improve women’s lives. The government of Xiomara Castro, in place since January, has so far failed to lift a ban on emergency contraception, in place since 2009 after a coup removed Castro’s husband from the presidency and inaugurated an ultra-conservative era marred by unprecedented levels of state corruption. Ruling in coalition with diverse elements, Castro has yet to find consensus on approving the morning-after pill. Her health minister, who hails from a conservative block, has said he will consult with the Catholic Church before making such a move.

                While the dust has yet to settle following the leaked draft, there is no doubt that reproductive rights in the United States are at their most precarious since the seventies. It is ironic that the land of the free is reversing course as some Latin American countries have decriminalized abortion. Argentina, Colombia and Mexico have recently taken such steps, the result of indefatigable activism and a decrease in the Catholic church’s influence. But with the right ascendant in the United States, abortion opponents seem bent on taking their country back to a situation not unlike that of the backward countries of Central America’s Northern Triangle.