Report: Draft opinion suggests high court could overturn Roe
WASHINGTON (KPIX/AP) - 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.
The court is expected to rule on the case before its term ends in late June or early July.
The draft opinion in effect states there is no constitutional right to abortion services and would allow individual states to more heavily regulate or outright ban the procedure.
"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."
A Supreme Court spokeswoman said the court had no comment and The Associated Press could not immediately confirm the authenticity of the draft Politico posted, which dates from February.
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."
It's unprecedented for a draft opinion from the Supreme Court to be leaked. Retired Superior Court Judge LaDoris Cordell believes the draft opinion reported by Politico is legitimate and sets a frightening precedent, not just for abortion rights.
"A draft opinion has never been leaked. Ever. In the history of the court," said Cordell. "The impact of this draft decision, if it comes out the way the draft opinion is written, is going to be huge and it's going to impact everyone. Especially women."
What Politico released appears to have been written in February. Opinions can change and get rewritten before the final vote.
"There will be changes but my guess is that what we are reading in this draft opinion is likely pretty much what we're going to see when this decision os finally issued this summer," said Cordell.
If the draft opinion is accurate, it will overturn Roe v Wade and each state can decide whether or not to ban abortions. Currently, there are 24 states looking to ban abortions or set stricter limits.
In California, Governor Gavin Newsom has vowed to protect women's rights and sent out this tweet saying, "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."
If Roe v Wade is indeed overturned, Judge Cordell is concerned about what other issues the Supreme Court may tackle next.
"You have to understand the whole history of the court has been to always uphold and follow precedent," said Cordell. "For example, if a decision has been made such as Brown v. The Board of Education, that's the law. People will see the Supreme Court as solely a political institution and that's very sad because that's not what it should be and it was not created to be that."
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. Critics of those measures have said low-income women will disproportionately bear the burden of the new restrictions.
The leak jumpstarted the intense political reverberations that the high court's ultimate decision was expected to have in the midterm election year. Already, politicians on both sides of the aisle were seizing on the report to fundraise and energize their supporters on either side of the hot-button issue.
An AP-NORC poll in December found that Democrats increasingly see protecting abortion rights as a high priority for the government.
Other polling shows relatively few Americans want to see Roe overturned. In 2020, AP VoteCast found that 69% of voters in the presidential election said the Supreme Court should leave the Roe v. Wade decision as is; just 29% said the court should overturn the decision. In general, AP-NORC polling finds a majority of the public favors abortion being legal in most or all 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.
People on both sides of the issue quickly gathered outside the Supreme Court waving signs and chanting on a balmy spring night, following the release of the Politico report.
The report has been met with cheers from some Republican lawmakers while Democrats are already calling on senators to break the filibuster rule and pass legislation protecting abortion rights.
In a joint statement from Congress' top two Democrats, House Speaker Nancy Pelosi and Senate Majority Leader Chuck Schumer said, "If the report is accurate, the Supreme Court is poised to inflict the greatest restriction of rights in the past fifty years - not just on women but on all Americans."
New York Gov. 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 you with open arms. Abortion will always be safe & 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 wait for the Court's official opinion." But local officials were praising the draft.
"This puts the decision making back into the hands of the states, which is where it should have always been," said Mississippi state Rep. Becky Currie.
Congress could act, too, though a bill that would write Roe's protections into federal law stalled in the Senate after passing the House last year with only Democratic votes.
At Supreme Court arguments in December, all six conservative justices signaled that they would uphold the Mississippi law, and five asked questions that suggested that overruling 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.
Until now, the court has allowed states to regulate but not ban abortion before the point of viability, around 24 weeks.
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. If Roberts is inclined to allow Roe to survive, he need only pick off one other conservative vote to deprive the court of a majority to overrule the abortion landmark.
Twenty-six states are certain or likely to ban abortion if Roe v. Wade is overturned, according to the pro-abortion rights think tank the Guttmacher Institute. Of those, 22 states already have total or near-total bans on the books that are currently blocked by Roe, aside from Texas. 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. Four more states are considered likely to quickly pass bans if Roe is overturned.
Sixteen states and the District of Columbia, meanwhile, have protected access to abortion in state law.
This year, anticipating a decision overturning or gutting Roe, eight conservative states have already moved to restrict abortion rights. Oklahoma, for example, passed several bills in recent weeks, including one that goes into effect this summer making it a felony to perform an abortion. Like many anti-abortion bills passed in GOP-led states this year, it does not have 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 make itself an "abortion sanctuary" if Roe is overturned.
The draft looked legitimate to some followers of the court. 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. The length and depth of analysis, would be very hard to fake. It says it is written by Alito and definitely sounds like him."
Andrea Nakano contributed to this report.
