A major change to abortion law could be coming soon. Politico reported Monday night that it has obtained a leaked draft of the majority opinion in this term’s abortion rights case and that the justices have voted to overturn Roe v. Wade.
“The draft opinion is a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision — Planned Parenthood v. Casey — that largely maintained the right,” Politico reported.
The article links to a PDF version of the leaked draft, which is written by Justice Samuel Alito. He argues that Roe was “egregiously wrong” and that abortion policies should be left up to individual states.
“The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitution provision,” Alito writes.
Under Supreme Court procedure, no opinion is final until it is formally released. “Justices can and sometimes do change their votes as draft opinions circulate and major decisions can be subject to multiple drafts and vote-trading, sometimes until just days before a decision is unveiled,” Politico reported.
Still, the leaked draft is momentous — and not just because of what it says. As Politico reported, “No draft decision in the modern history of the court has been disclosed publicly while a case was still pending.”
SCOTUSblog, which closely tracks Supreme Court business, tweeted Monday night that the leak will cause an “earthquake” within the court.
“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,” SCOTUSblog said.
Politico reported that a Supreme Court spokesperson declined to comment on the leaked draft. Tuesday morning, the Supreme Court released a statement confirming that the draft was authentic but adding that it is not final.
“Although the document described in yesterday’s report is authentic, it does not represent a decision by the court or the final position of any member on the issues in the case,” it said.
The statement included comments from Chief Justice John Roberts, who announced that the court has launched an internal investigation to uncover the source of the leak.
“To the extent this betrayal of the confidences of the court was intended to undermine the integrity of our operations, it will not succeed. The work of the court will not be affected in any way,” he said.
“Alito” began trending on Twitter soon after Politico broke the news on Monday night. Legal experts and people on both sides of the abortion rights debate tweeted excerpts of the draft opinion and tried to guess the motivations of whoever leaked it.
Steven Mazie, who covers the Supreme Court for The Economist, guessed that the leak might have come from an abortion opponent. Sharing the draft opinion might be a way to ensure that a conservative justice who originally voted with Alito doesn’t defect, he said.
Others, including attorney and author Jill Filipovic, wondered if a more liberal Supreme Court clerk might have leaked it to show the justices how big the backlash will be if Alito’s draft becomes final.
To be clear, the justices will see more than backlash if they check Twitter and the news. Many people are praising Alito’s opinion and praying that the final decision will overturn Roe v. Wade.
“This decision is going to set a new course in American constitutional law — one that many of us have worked years for,” tweeted Brent Leatherwood, acting president of the Ethics & Religious Liberty Commission of the Southern Baptist Convention.
In this term’s abortion case, Dobbs v. Jackson Women’s Health Organization, the justices are considering a Mississippi law banning most abortions after the 15th week of pregnancy. Opponents of the law say it violates past rulings, including Roe, that guarantee a right to abortion until the point of fetal viability, which is around 24 weeks.
Due to the court’s 6-3 conservative majority, most legal experts predicted the justices would uphold the Mississippi ban. However, many felt the court would stop short of overturning Roe v. Wade, since the chief justice typically pushes for narrow rulings.
The Supreme Court’s final decision is expected sometime in the next two months.