A draft opinion from the Supreme Court was leaked to POLITICO on May 2 that suggested the court is planning to overturn Roe v. Wade, which has granted the right to abortion under the 14th Amendment for nearly five decades.
The decision would not only overturn Roe v. Wade, but also Planned Parenthood v. Casey, which was a 1992 ruling that upheld the federally protected right to abortion.
The Supreme Court confirmed the authenticity of the draft opinion, and Chief Justice John G. Roberts Jr. ordered an investigation into the leak. In a statement, the court said the draft does not represent a final decision.
President Joe Biden issued a statement saying in order to federally protect abortion services, “we will need more pro-choice Senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law.”
Some online users have speculated what U.S. lawmakers could do to ensure abortion rights were federally protected. Sen. Bernie Sanders (D-Vt.) called for legislation that would codify, or put into law, the rights established by Roe v. Wade.
Can Congress pass a law that supersedes a Supreme Court ruling?
Yes, Congress could pass a law that supersedes a Supreme Court ruling, but the Supreme Court could strike it down as unconstitutional.
WHAT WE FOUND
The leaked draft suggests the Supreme Court will overturn Roe v. Wade, but the court is not expected to issue an official ruling until June. Until the court hands down an official ruling, abortion rights are still federally protected.
Should the Supreme Court rule to overturn Roe v. Wade, Congress could introduce and pass legislation that would federally protect abortion services. That would effectively supersede the potential decision, George Washington University Professor Casey Burgat told VERIFY in an email.
“However, and this is a big however, SCOTUS could then deem the new abortion law unconstitutional in a future case,” Burgat wrote. “A federal law is the best, most legitimate means of codifying the principles of Roe v Wade. It's not bullet-proof because a future Supreme Court case can render the new law unconstitutional, but it's by far the most feasible strategy to make abortion legal in all U.S. states.”
Lawmakers have already introduced legislation that would codify Roe v. Wade, but, so far, it has failed to become law. The Women’s Health Protection Act of 2021 was first introduced in the House in June 2021. In September 2021, the bill was passed in the House 218-211. On Feb. 28, the Senate voted against bringing the bill to the floor.
Doron Kalir, clinical professor of law at Cleveland-Marshall College of Law, said if the Women’s Health Protection Act was passed in the Senate and signed into law by President Joe Biden, it would likely be contested in lower courts immediately and could make its way back to the Supreme Court in a matter of weeks.
Kalir told VERIFY the current decision before the Supreme Court only applies at the federal level, and not at the state level. If the Supreme Court rules to change the current rights granted to women under the Constitution, as is proposed in the leaked draft opinion, individual states will have more leniency to create their own laws.
“That’s precisely why they have the Ninth Amendment, the Ninth Amendment reads specifically that any right that is not mentioned specifically in the Constitution is reserved to the state and the people respectively … Congress is bound by the federal constitution and the rights that they have,” Kalir said.