A draft opinion suggests the US Supreme Court may be poised to overturn the landmark Roe v. Wade in 1973 that legalized abortion across the country, according to a Politico report published Monday.
A decision to override Roe would lead to abortion bans in about half the states and could have huge ramifications for this year’s election. But it’s unclear whether the draft represents the court’s final word on the matter: Opinions often change in ways big and small in the drafting process.
Whatever the outcome, the Politico report represents an extremely rare violation of the court’s secret deliberation process, and in a case of paramount importance.
“Roe was terribly wrong from the start,” the draft opinion states. It was signed by Justice Samuel Alito, a member of the court’s 6-3 conservative majority who was appointed by former President George W. Bush.
The document was labeled a “first draft” of the “court opinion” in a case challenging Mississippi’s ban on abortion after 15 weeks, a case known as Dobbs v. Jackson Women’s Health Organization.
The court is expected to rule on the case before his term ends in late June or early July.
The draft opinion in effect states that there is no constitutional right to abortion services and would allow individual states to more strictly regulate or outright ban the procedure.
“We hold that Roe and Casey should be overturned,” he says, referring to the 1992 case Planned Parenthood v. Casey who affirmed Roe’s conclusion of a constitutional right to abortion services but allowed states to place some restrictions on the practice. “It is time to heed the Constitution and return the issue of abortion to the elected representatives of the people.”
A Supreme Court spokeswoman said the court had no comment and The Associated Press could not immediately confirm the authenticity of the February draft published in Politico.
Politico said only that it received “a copy of the draft opinion from a person familiar with court proceedings in the Mississippi case along with other details that support the authenticity of the document.”
The draft opinion strongly suggests that when the justices met privately shortly after arguments in the case on December 1, at least five voted to overrule Roe and Casey, with Alito tasked with writing the opinion. majority of the court.
Votes and opinions in a case are not final until a decision is announced or, in a change brought about by the coronavirus pandemic, posted on the court’s website.
The report comes amid a legislative push to restrict abortion in several Republican-led states, Oklahoma being the most recent, even before the court issues its decision. Critics of those measures have said low-income women will disproportionately bear the burden of the new restrictions.
The leak began the intense political repercussions that the final decision of the high court was expected to have in the year of the mid-term elections. Politicians on both sides of the aisle were already seizing on the report to raise funds and energize their supporters on both sides of the hot-button issue.
An AP-NORC poll in December found that Democrats increasingly view protecting abortion rights as a high priority for the administration.
Other polls show that relatively few Americans want Roe overturned. In 2020, AP VoteCast found that 69% of voters in presidential elections said the Supreme Court should drop the Roe v. wade as is; only 29% said the court should reverse the decision. Overall, the AP-NORC poll finds that the majority of the public favors abortion being legal in most or all cases.
Still, when asked about abortion policy in general, Americans have nuanced attitudes on the subject, with many not believing that abortion should be possible after the first trimester or that women should be able to obtain a legal abortion. for any circustance.
Alito, in the draft, said the court cannot predict how the public might react and should not try. “We cannot allow our decisions to be affected by outside influences, such as concerns about the public’s reaction to our work,” Alito wrote in the draft opinion, according to Politico.
People on both sides of the issue rallied outside the Supreme Court waving banners and chanting on a warm spring night, following the release of the Politico report.
The reaction was swift from elected officials in Congress and across the country.
In a joint statement by the two top Democrats in Congress, House Speaker Nancy Pelosi and Senate Majority Leader Chuck Schumer, they said: “If the report is accurate, the Supreme Court is ready to inflict the greatest restriction of rights in the last fifty years, not only on women but on all Americans.”
New York Governor Kathy Hochul, also a Democrat, said people seeking abortions could head to New York. “For anyone who needs access to care, our state will welcome them with open arms. Abortion will always be safe and accessible in New York,” Hochul said in a tweet.
Mississippi Attorney General Lynn Fitch said in a statement: “We will let the Supreme Court speak for itself and await the official opinion of the Court.” But local officials praised the draft.
“This puts decision-making back in the hands of the states, which is where it should always have been,” said Mississippi State Rep. Becky Currie.
Congress could also act, though a bill that would include Roe’s protections in federal law stalled in the Senate after passing the House last year with only Democratic votes.
In Supreme Court arguments in December, all six conservative justices signaled they would uphold the Mississippi law, and five asked questions that suggested overturning Roe and Casey was a possibility.
Only Chief Justice John Roberts seemed prepared to take the smaller step of upholding the 15-week ban, though that too would be a significant weakening of abortion rights.
So far, the court has allowed states to regulate but not prohibit abortion before the point of viability, around 24 weeks.
The three liberal justices on the court seemed to disagree.
It is impossible to know what efforts are being made behind the scenes to influence any judge’s vote. If Roberts is inclined to let Roe survive, he just needs to win another conservative vote to deprive the court of a majority to overturn the abortion milestone.
Twenty-six states are certain or likely to ban abortion if Roe v. Wade is overruled, according to the pro-abortion think tank the Guttmacher Institute. Of those, 22 states already have full or near-full bans on the books that are currently blocked by Roe, plus Texas. The Supreme Court has already allowed the state law barring it after six weeks to go into effect because of its unusual civil enforcement structure. Four more states are seen as likely to quickly pass bans if Roe is overturned.
Meanwhile, sixteen states and the District of Columbia have protected access to abortion in state law.
This year, in anticipation of a decision that would overturn or gut Roe, eight conservative states have already moved to restrict abortion rights. Oklahoma, for example, has passed several bills in recent weeks, including one that takes effect this summer and makes it a felony to perform an abortion. Like many anti-abortion bills passed this year in GOP-led states, it has no exceptions for rape or incest, only to save the life of the mother.
Eight Democratic-leaning states protected or expanded access to the procedure, including California, which has passed legislation making the procedure less expensive and is considering other bills to become an “abortion sanctuary” if Roe is struck down.
The draft seemed legitimate to some court supporters. Veteran Supreme Court attorney Neal Katyal, who clerked for Justice Stephen Breyer and has therefore been able to see drafts, wrote on Twitter: “There are many signs that the opinion is legitimate. The length and depth of the analysis would be very difficult to fake. He says it’s written by Alito and it definitely sounds like him.”
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