WASHINGTON — A draft opinion suggests the U.S. Supreme Court could be poised to overturn the landmark 1973 Roe v. Wade case that legalized abortion nationwide, according to a Politico report released Monday.
A decision to overrule Roe would lead to abortion bans in roughly half the states and could have huge ramifications for this year’s elections. But it’s unclear if 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 breach of the court’s secretive deliberation process, and on a case of surpassing importance.
“Roe was egregiously 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 “1st Draft” of the “Opinion of the Court” in a case challenging Mississippi’s ban on abortion after 15 weeks, a case known as Dobbs v. Jackson Women’s Health Organization.
This case will be heard by the court before its term expires in June or July.
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Draft opinion states in essence that abortion is not constitutionally protected and allows states to restrict or prohibit the practice.
“We hold that Roe and Casey must be overruled,” it states, referencing the 1992 case Planned Parenthood v. Casey that affirmed Roe’s finding of a constitutional right to abortion services but allowed states to place some constraints on the practice. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
The Supreme Court spokeswoman stated that they had not commented and The Associated Press couldn’t immediately confirm whether the Politico draft, posted in February, was authentic.
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.”
The draft opinion strongly suggests that when the justices met in private shortly after arguments in the case on Dec. 1, at least five voted to overrule Roe and Casey, and Alito was assigned the task of writing the court’s majority opinion.
Votes and opinions in a case aren’t final until a decision is announced or, in a change wrought 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. The new restrictions will be burdensome on low-income women, according to critics.
On March 8th, 2022, demonstrators held a march and rally to support Roe v. Wade. This landmark 1973 decision of the U.S.Supreme Court legalized abortion with no excessive restrictions from the government.
Scott Olson/Getty Images
The leak jumpstarted the intense political reverberations that the high court’s ultimate decision was expected to have in the midterm election year. Both sides of the aisle had already begun to seize on the leak to raise funds and inspire their supporters.
A December AP-NORC poll found that Democrats are increasingly valuing protecting abortion rights as a top priority for government.
According to other polling, Americans do not want Roe to be overturned. AP VoteCast polled 69% of the 2020 presidential electorate and found that only 29% supported the Supreme Court leaving Roe v. Wade as it is. Only 29% supported the Supreme Court overturning the decision. AP-NORC polling shows that the majority of Americans favor legalizing abortion in all or most cases.
Still, when asked about abortion policy generally, Americans have nuanced attitudes on the issue, and many don’t think that abortion should be possible after the first trimester or that women should be able to obtain a legal abortion for any reason.
Alito, in the draft, said the court can’t predict how the public might react and shouldn’t try. “We cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work,” Alito wrote in the draft opinion, according to Politico.
At December’s arguments, six conservative justices said they would defend the Mississippi law. Five of them asked questions that indicated that Roe & Casey might be overruled.
Only Chief Justice John Roberts appeared to be willing to accept the minor step of upholding a 15-week ban. However, that would still represent a substantial weakening in abortion rights.
Jusqu’à now, states have been allowed to allow abortion before it is considered viable, which can be around 24 weeks.
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The court’s three liberal justices seemed likely to be in dissent.
It’s impossible to know what efforts are taking place behind the scenes to influence any justice’s vote. Roberts could easily pick one more conservative vote in order to deny the court majority necessary to repeal the landmark abortion law if he is willing to let Roe survive.
According to The Guttmacher Institute, 26 states would ban abortion if Roe V. Wade was overturned. 22 of those states have complete or nearly-total prohibitions that are blocked by Roe. The state’s law banning it after six weeks has already been allowed to go into effect by the Supreme Court due to its unusual civil enforcement structure. Roe could be overturned by four additional states, which would allow them to pass similar bans.
Sixteen states, as well as the District of Columbia, have secured access to abortion through state laws.
Eight conservative states are already restricting abortion rights this year in anticipation of a Roe decision being overturned or eliminated. Oklahoma has passed several bills, one of which will go into effect in the summer, making it a crime to have an abortion. The bill, like many others passed this year by GOP-led States, does not allow for exceptions to rape and incest. It is intended only to preserve the mother’s health.
Seven 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 make itself an “abortion sanctuary” if Roe is overturned.
Some court followers thought the draft was legitimate. Veteran Supreme Court lawyer Neal Katyal, who worked as a clerk to Justice Stephen Breyer and therefore has been in a position to see drafts, wrote on Twitter: “There are lots of signals the opinion is legit. You can’t fake the depth and length of this analysis. It says it is written by Alito and definitely sounds like him.”
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Report by Jessica Gresko from Washington and Lindsay Whitehurst of Salt Lake City, both Associated Press reporters.
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