In early May, Politico leaked a draft from Justice Samuel Alito on the Supreme Court’s decision to overturn Roe v. Wade and Planned Parenthood v. Casey, two cases that constitutionally protect the ability to get an abortion. 

It is the first time in history that a Supreme court draft has been leaked prior to the final decision, and has led to an outcry from pro-choice activists, who have called it an assault on bodily autonomy for those who can get pregnant. 

Roe v. Wade is a 1973 Supreme Court decision that stated that any excessive restrictions on abortion were unconstitutional because abortion bans violated the 14th amendment – the right to life, liberty and property. However, the decision did concede the right of the state to restrict abortion in the third trimester, when it is widely believed that a fetus has viability which is the ability to live outside the mother’s womb. Planned Parenthood v. Casey was a subsequent case nineteen years later that established that abortion bans or limits were unconstitutional if they placed and undue burden on the person seeking an abortion. 

Before Roe was decided, the decison of when or if to ban abortions was left to the state government, meaning that different states banned abortion at different times and in some states, there were very little restrictions on abortion. If the case were to be overturned in the summer, it would give the decision of when to ban abortions back to each state government instead of it being federally unrestricted. Meaning that as of now, in Pennsylvania, abortion will still be legal and there will still be access to it. Governor Tom Wolf made that clear on social media after the draft was leaked. However, 26 states, including Texas, Michigan, and Florida, have bans that will go into effect if Roe is overturned. And with the overturn of Casey, abortion restrictions would no longer be constitutationally outlawed due to the undue burden on the mother’s body.

The leaked draft, written by conservative Justice Samuel Alito and so far, backed by four other conservative justices – Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – is the accomplishment of many years of conservative efforts to overturn the landmark 1973 case. 

Unlike Congress or the president, Justices are not voted into their office directly. When a spot on the 9 seat bench opens, it is the job of the sitting president to nominate a new judge to the Supreme Court, and then the Senate votes to confirm the new justice based on merits and qualifications. 

While the process to nominate and confirm a judge is not directly influenced by democracy, it is the elected leaders, nationally and statewide, that make those decisions. It’s an extension of American democracy. However, the draft created by Alito shows how the election system in America has failed to properly represent the population of the United States.

Three of the justices who have signed on the draft – Kavanaugh, Gorsuch, and Barrett – were appointed by Donald Trump. In 2016, when Trump was elected, he won by 77 points in the electoral college, but lost the popular vote by almost 3 million votes. 

It also worth noting that Trump’s last nomination, Amy Coney Barrett, was confirmed to the Supreme Court just shy of three months before Biden was inaugurated, robbing the American people of their right to vote and decide who they wanted on the Supreme Court, knowing that abortion was a likely issue to be decided.The voting system in America is failing to represent what the people want, and in some instances, enables minority rule. Certainly, there will always be a debate within the United States about abortion. People will never agree. But the blatant majority – 61 percent of Americans – in the United States should not be silenced due to an old electoral system – especially on such a contentious and personal matter.