The U.S. Supreme Court will vote to overturn Roe v. Wade, the 1973 decision that legalized abortion nationwide, according to draft opinion cited in a news report released Monday evening.
“We hold that Roe and Casey must be overruled,” Associate Justice Samuel A. Alito Jr. writes in the purported 98-page draft document, obtained by Politico, which is labeled as the “Opinion of the Court.” “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
The Politico report described the opinion as “a full-throated, unflinching repudiation” of Roe v. Wade, which created a constitutional right to abortion nationwide up until roughly 24-28 weeks of pregnancy. The court sides with the state of Mississippi, which had appealed to the court to uphold a 15-week abortion ban that lawmakers there passed in 2018.
The document, which bears the words “1st Draft” at the top, states that Roe v. Wade’s reasoning was “exceptionally weak,” that the original decision has had “damaging consequences,” and that the decision was “egregiously wrong.”
“Abortion presents a profound moral question. The Constitution does not prohibit the citiizens of each State from regulating or prohibiting abortion. Roe [v Wade] and [Planned Parenthood v Casey] arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives,” the draft decision reads.
CNA has not been able to independently verify if the draft opinion shared by Politico is genuine, and the court’s decision will not be final until it is published, likely to happen by the end of June. If the decision holds, more than a dozen states will immediately outlaw abortion.
The news report, while noting that justices can change their votes as drafts are revised, said it is “unclear” whether there have been changes made since that first draft. The report, citing an unnamed Supreme Court insider who leaked the document, says that four justices — Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — have joined Alito in the majority opinion, while three — Stephen Breyer, Sonia Sotomayor and Elena Kagan — are preparing dissents.
Chief Justice John Roberts has not yet decided how he will vote, the report says.
In the draft, Alito writes that the Constitution “makes no reference to abortion,” and that “no such right is implicitly protected by any constitutional provision.”
“[F]ar from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division,” Alito continued.
The case in question, Dobbs v. Jackson Women’s Health Organization, was argued before the court in Dec. 2021. The case involves a Mississippi law restricting most abortions after 15 weeks and centers on the question of “Whether all pre-viability prohibitions on elective abortions are unconstitutional,” or whether states can ban abortion before a fetus can survive outside the womb.
In Roe v. Wade, the court ruled that states could not ban abortion before viability, which the court determined to be 24 to 28 weeks into pregnancy. In 1992, the court largely upheld Roe in Planned Parenthood v. Casey. If Roe is ultimately overturned, as the draft suggests, abortion law would be left up to each individual state.
If the draft is genuine, this marks the first time in the court’s modern history that a draft opinion of the court has been leaked while the case is still pending, Politico notes. SCOTUSblog, a popular site that reports on the Supreme Court, tweeted that the draft is “almost certainly an authentic draft opinion” and that its leakage constituted an “unforgivable sin.”
“The document leaked to Politico is almost certainly an authentic draft opinion by J. Alito that reflects what he believes at least 5 members of the Court have voted to support — overruling Roe. But as Alito’s draft, it does not reflect the comments or reactions of other Justices,” SCOTUSblog tweeted.
“It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin.”
Some pro-life leaders reacted cautiously to the Politico report, while many reaffirmed their condemnation of Roe and their hope that the ultimate decision reflects what is in the draft.
The pro-life group SBA List said “If the draft opinion made public tonight is the final opinion of the court, we wholeheartedly applaud the decision.”
“The American people have the right to act through their elected officials to debate and enact laws that protect unborn children and honour women,” said SBA List President Marjorie Dannenfelser in a statement.
“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.
“We also recognize the need for the pro-life movement to continue its existing work to support pregnant women and children in need. There are thousands of pro-life pregnancy centers and maternity homes nationwide and an ever-growing pro-life safety net. The pro-life movement will continue to grow to meet the needs of these women and their families, walking and planning with them to love and serve both mother and child.”
On Twitter, reporters noted that barricades went up around the Supreme Court building in Washington, D.C., immediately after the news broke.
Georgetown student Gabe Fleisher, author of the Wake Up To Politics newsletter, tweeted, “Two police officers are standing watch as a crowd of about 50 has gathered, most sitting quietly with candles.”
Photo: Morgan via Flickr (CC BY 2.0) (via CNA)
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