A leaked majority opinion, dated February 2022, published by Politico, and drafted by Supreme Court Justice Samuel Alito, would overturn the landmark 1973 Supreme Court decision that established a constitutional right to abortion in the United States: Roe v. Wade, 410 U.S. 113 (“Roe”).
On May 3, 2022, the authenticity of the leaked draft was confirmed by Chief Justice John G. Roberts and he ordered the commencement of an investigation into the source of the leak. The Chief Justice also stated that the copy of the draft opinion “does not represent a decision by the Court or the final position of any member on the issues in the case.”
The purpose of this leaked draft opinion is to determine the constitutionality of a Mississippi law that generally prohibits an abortion after the fifteenth week of pregnancy. The State of Mississippi asked the court to reconsider and overrule Roe and Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) (“Casey”), where the Supreme Court revisited Roe and adhered to its central holding: that a State may not constitutionally protect fetal life before “viability”-even if that holding was wrong, as stated by Samuel Alito in page 3 of the leaked draft opinion.
The Supreme Court’s leaked opinion suggests that Roe and Casey could be overruled. Alito’s analysis represents his interpretation of the Constitution, Roe and Casey. He concludes that the U.S. Constitution makes no reference to abortion and no such right is implicitly protected by any constitutional provision, including the due Process Clause of the Fourteenth Amendment.
Overruling Roe would allow each State to regulate and control abortion with the passing of legislation by the people’s elected representatives. If the ruling is made final, it would allow each state to control abortion as they deem fit.
On September 24, 2021, the House of Representatives passed H. R. Bill 3755, which would create “The Women’s Health Protection Act of 2021”. H. R. Bill 3755 prohibits governmental restrictions on the provision of, and access to, abortion services. If enacted, governments could not limit a provider’s ability to prescribe certain drugs, offer abortion services via telemedicine, or immediately provide abortion services when the provider determines a delay risks the patient’s health, among other rights.
As a response to the leaked opinion, the U.S. Senate voted on May 11, 2022. Nonetheless, the Senate failed to secure the votes needed to debate and amend the bill. Senators voted 49-51 and blocked the consideration of “The Women’s Health Protection Act of 2021”. EE.UU. President Joe Biden issued a statement and frowned upon Republicans in Congress who did not vote for this bill. Biden also reaffirmed the compromise of his Administration to protect access to women’s reproductive care and defend women’s constitutional rights to make private reproductive choices.
In Puerto Rico, as explained by Julio Fontanet, dean of the Interamerican University of Puerto Rico School of Law, for an article published by Microjuris, the Commonwealth has its own jurisprudence recognizing the right to abortion: Pueblo v. Duarte, 109 D.P.R. 596 (Duarte). It’s Fontanet’s opinion that, in order to change this right, the PR Supreme Court would have to revoke Duarte and find a way to justify that act. He explained to Microjuris that this could be very difficult given that in our Constitution the right to intimacy is expressly recognized as a fundamental right and its more widely held in our jurisdiction. As of today, abortion is legal in Puerto Rico if performed by a physician for the purpose of protective the life or health (physical and/or mental) of a pregnant woman.
Lately, the right to an abortion has been widely discussed in Puerto Rico because Bill 693 of the Puerto Rico Senate is seeking to ban abortions after 22 weeks of gestation, date where the survival of the fetus is viable outside the womb. As an exception, the bill states that an abortion after 22 weeks could be performed if a medical professional deems it necessary for the protection of the woman’s life. Additionally, several other bills seeking the restriction of the right to an abortion are in consideration of the P.R. Senate and/or House of Representatives.