Supreme Court has drafted opinion to overturn Roe v. Wade: report
The Supreme Court appears poised to overturn Roe v. Wade, the landmark decision that legalized abortion nationwide, according to an unprecedented leak of a draft opinion.
The majority opinion was written by Justice Samuel Alito and leaked to Politico in an extraordinary breach of Supreme Court procedure that immediately sparked political outrage and protests outside the court.
“Roe was egregiously wrong from the start,” Alito writes in the 98-page first draft labeled as the “Opinion of the Court.”
The right to have an abortion up until around 23 or 24 weeks, has been federally protected under the Constitution since the Roe v. Wade decision 49 years ago in 1973.
However, in his draft majority ruling, Alito insisted that “its reasoning was exceptionally weak, and the decision has had damaging consequences.”
The opinion also rejects the subsequent Planned Parenthood v. Casey decision in 1992. It would instead hand decisions to individual states.
“And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division,” the document argues.
Roe’s “survey of history ranged from the constitutionally irrelevant to the plainly incorrect,” wrote Alito, a member of the court’s 6-3 conservative majority who was appointed by former President George W. Bush.
“Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. Zero. None. No state constitutional provision had recognized such a right,” he argued.
Alito said that the Roe “imposed the same highly restrictive regime on the entire Nation, and it effectively struck down the abortion laws of every single state.”
“The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions,” Alito wrote.
“The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion,” the draft concludes.
At least 26 states in the South and Midwest are likely to immediately restrict abortion or enact a near-total ban if the historic decision were overturned, according to the Guttmacher Institute, an abortion-rights advocacy research group.
“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives, Alito said.
However, the draft ruling was written in February, and it is not clear if there have been changes since it was drafted, Politico reported.
SCOTUS judges are known to have changed their votes as opinions circulate, the outlet noted, and major decisions such as this can go through multiple drafts before a final decision, which is expected later this spring.
Still, within hours of the leak, barricades were placed around the Supreme Court building in Washington DC as protesters from both sides quickly descended.
Late into the night, anti-abortion activists chanted “hey, hey, ho, ho, Roe v. Wade has got to go” while abortion rights supporters shouted “abortion is health care.”
The suggested legal upheaval also sparked instant outrage from the left.
“The Republican-appointed Justices’ reported votes to overturn Roe v. Wade would go down as an abomination, one of the worst and most damaging decisions in modern history,” said House Speaker Nancy Pelosi and Senate majority leader Chuck Schumer in a joint statement.
Hillary Clinton said it was “Not surprising. But still outrageous.”
“This decision is a direct assault on the dignity, rights, & lives of women, not to mention decades of settled law,” tweeted the former first lady and secretary of state.
“It will kill and subjugate women even as a vast majority of Americans think abortion should be legal. What an utter disgrace.”
Sen. Bernie Sanders, meanwhile, said that “Congress must pass legislation that codifies Roe v. Wade as the law of the land in this country NOW.”
“And if there aren’t 60 votes in the Senate to do it, and there are not, we must end the filibuster to pass it with 50 votes,” he insisted.
In sharp contrast, Republican Rep. Marjorie Taylor Greene posted a tearful video in which she called it “the best news of our lifetime.”
“This is a great victory … this is a great victory for God and the unborn,” said the Georgia congresswoman, admitting she was “overwhelmed with emotion.”
Fellow Republican Rep. Lauren Boebert also tweeted of protests, “If your response to the SCOTUS news is to dust off your stupid pink hat from 2016 and go march to support infanticide, re-evaluate your entire life.”
Former White House spokesman Sean Spicer was among those keen to stress that the expected ruling was “NOT ‘Outlawing’ abortion.”
“Overturning #RoeVWade makes it a state issue and multiple BLUE states have previously said they will be abortion sanctuary states,” he stressed.
Republican Sen. Mitt Romney was among leading GOPers who also declared support.
“The sanctity of human life is a foundational American principle. Laws regarding abortion would not be returned to the people and their elected representatives,” he said in a statement.
However, he was among those outraged at the leak itself, which Politico insisted was the first time in the court’s modern history that a draft report had been made public while a final decision on a case was still pending.
“The breach of the court’s deliberative process … is an appalling affront against a critical institution and should be fully investigated and those responsible should be punished,” Romney wrote.
Donald Trump Jr. also tweeted Tuesday, “If there’s not [a] thorough criminal investigation into who leaked privileged documents from the United States Supreme Court then we live in a clown show state.”
Florida Republican Sen. Marco Rubio also reacted, saying, “The next time you hear the far left preaching about how they are fighting to preserve our Republic’s institutions & norms remember how they leaked a Supreme Court opinion in an attempt to intimidate the justices on abortion.”
There was also outrage at the leak itself, which Politico insisted was the first time in the court’s modern history that a draft report had been made public while a final decision on a case was still pending.
Harvard law professor emeritus Jonathan Turley called it “nothing short of breathtaking” and a “malicious act,” insisting, “It would constitute one of the greatest breaches of security in the history of the Court.”
The most likely motivation is obviously to pressure the Court and push the legislation in Congress on a federal abortion law before the midterm elections. It will also likely renew the call for court packing,” he wrote.
“The fact that some are praising this leak shows how utterly craven we have become in our politics,” he said.
Former Congressman Justin Amash said the leak “destroys trust among the justices and undermines justice.”
“The justices must be able to share their thoughts candidly—and vulnerably—with one another. They are judges deciding cases, not legislators writing laws that need public input,” he wrote.
The draft decision appeared to be based on an oral argument in December on Mississippi’s bid to revive its near-total ban on abortion starting at 15 weeks of pregnancy — a law blocked by lower courts.
A source familiar with the court’s discussions on the matter told Politico that four of the other conservative justices – Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — joined Alito in his vote after the judges convened following oral arguments in December.
The four judges have maintained their positions as of this week. The source said Democratic-appointed justices Stephen Breyer, Sonia Sotomayor and Elena Kagan were working on one or more dissents, leaving Justice John Roberts — who is expected to either irrelevantly join the dissent or pen an opinion of his own.
Meanwhile, 16 states and the District of Columbia, have protected access to abortion in state law.
That includes New York, with then-Gov. Andrew Cuomo updated the Empire State’s laws in 2019.
New York City Mayor Eric Adams said that he is ready to “fight like hell” against the Supreme Court’s ruling, tweeting Monday night while he was in attendance at the Met Gala.
“New York City knows that a woman’s right to make her own health care decisions is hers and hers alone,” he wrote. “This potential assault on their freedom by right-wing extremists cannot stand. “We’re ready to fight like hell.”
Gov. Kathy Hochul said the state would “welcome with open arms” anyone who needs access to an abortion.
“New York will always be a place where abortion rights are protected and where abortion is safe and accessible,” she said.
Gov. Phil Murphy in neighboring New Jersey also noted the “Freedom of Reproductive Choice Act” he signed earlier this year “codifying a woman’s right to choose into state law.”
“I want to assure every New Jerseyan that today’s news about the Supreme Court does not change access to abortion in our state,” he said, calling the expected legal change “a truly dark day in America.”
“Access to reproductive health care remains available to anyone who needs it in New Jersey,” he stressed.
Likewise in Connecticut, Gov. Ned Lamont vowed to continue taking “the steps necessary to protect and expand reproductive rights.”
“We will do everything in our power to defend abortion rights in Connecticut,” he promised.
He noted how the General Assembly recently passed a bill protecting abortion rights.
“As soon as the bill hits my desk, I will proudly sign it into law, guaranteeing the right to choose in Connecticut for generations to come,” he said.
In California, Gov. Gavin Newsom also announced plans to “enshrine the right to choose in the California constitution.”
“We can’t trust SCOTUS to protect the right to abortion, so we’ll do it ourselves. Women will remain protected here,” he wrote.
“Our daughters, sisters, mothers, and grandmothers will not be silenced. The world is about to hear their fury. California will not sit back. We are going to fight like hell,” he threatened.
Pennsylvania Attorney General Josh Shapiro, who is running for governor, also vowed to “fight like hell” to protect current rights.
“Abortion is legal in Pennsylvania under state law. It will remain legal, no matter what SCOTUS rules,” he tweeted.
However, Mississippi state Rep. Becky Currie said, “This puts the decision making back into the hands of the states, which is where it should have always been.”
Anti-abortion group, Susan B. Anthony List, also welcomed the news.
“If Roe is indeed overturned, our job will be to build consensus for the strongest protections possible for unborn children and women in every legislature,” its president, Marjorie Dannenfelser, said in a statement.
In his draft, Alito stressed that the court could not be swayed by the expecting public backlash.
“We cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work,” he wrote.
“We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision.”
Politico said only that it received “a copy of the draft opinion from a person familiar with the court’s proceedings in the Mississippi case along with other details supporting the authenticity of the document.”
One of the site’s reporters who worked on the story, Josh Gerstein, told MSNBC late Monday they were “very confident in the authenticity.”
The Supreme Court has yet to authenticate it. “The Court has no comment,” spokesperson Patricia McCabe told The Post.
With Post wires
