According to a Politico story posted Monday, a draft opinion implies the US Supreme Court is likely to overturn the historic 1973 Roe v. Wade ruling, which legalized abortion statewide.
Overturning Roe would result in abortion restrictions in about half of the states, with significant implications for this year’s elections. However, it’s uncertain if the draft is the court’s last word on the topic; throughout the writing process, opinions regularly shift in minor ways.
Regardless of the verdict, the Politico article constitutes an incredibly uncommon breach of the court’s private deliberation process, and on a matter of monumental significance.
The draft opinion adds, “Roe was egregiously incorrect from the outset.” Justice Samuel Alito, a member of the court’s 6-3 conservative majority and a former President George W. Bush appointee, signed it.
The paper was labeled a “1st Draft” of the “Opinion of the Court” in Dobbs v. Jackson Women’s Health Organization, a lawsuit challenging Mississippi’s restriction on abortion beyond 15 weeks.
The court is likely to make a decision on the matter before the end of its term, which is projected to be in late June or early July.
In effect, the draft ruling asserts that there is no constitutional right to abortion services, allowing individual states to limit or outright prohibit the surgery.
It adds, “We hold that Roe and Casey must be overturned,” referring to the 1992 decision Planned Parenthood v. Casey, which upheld Roe’s determination of a constitutional right to abortion services but permitted states to impose some restrictions on the procedure. “It’s past time to pay attention to the Constitution and restore the subject of abortion to the people’s elected representatives,” she says.
The Associated Press could not immediately authenticate the legitimacy of the document Politico shared, which dates from February, since a Supreme Court spokesperson said the court had no comment.
Politico only stated it had “a copy of the draft ruling from a person familiar with the court’s processes in the Mississippi case, as well as additional information corroborating the document’s legitimacy.”
The draft opinion strongly implies that when the justices gathered in secret immediately after the case’s arguments on Dec. 1, at least five of them agreed to overrule Roe and Casey, and Alito was tasked with authoring the majority decision.
A case’s votes and views aren’t final until the court announces its judgment or, in the instance of the coronavirus epidemic, when it’s posted on the court’s website.
Even before the court’s ruling, a legislative drive to restrict abortion is underway in many Republican-led states, the most recent of which is Oklahoma. Low-income women, according to critics of the measures, will face a disproportionate share of the new limitations.
The disclosure sparked the tremendous political reverberations that the high court’s final ruling was expected to have during this election year’s congressional elections. Politicians on both sides of the aisle have already used the study to collect funds and motivate their fans on both sides of the divisive subject.
In a December AP-NORC survey, Democrats said that defending abortion rights is becoming a top priority for the government.
According to other polls, just a small percentage of Americans want Roe v. Wade reversed. According to AP VoteCast, 69 percent of voters in the 2020 presidential election believe the Supreme Court should uphold the Roe v. Wade decision, while only 29% believe it should be overturned. In general, according to AP-NORC polling, the public prefers abortion to be legal in most or all cases.
When questioned about abortion policy in general, however, Americans have mixed feelings, with many believing that abortion should not be permitted beyond the first trimester or that women should be allowed to have a legal abortion for any reason.
In the draft, Alito stated that the court cannot and should not attempt to forecast how the people will respond. According to Politico, Alito said in the draft ruling, “We cannot allow any external pressures like as worry about the public’s reaction to our work to influence our conclusions.”
Following the publishing of the Politico piece, people on both sides of the issue gathered outside the Supreme Court, waving placards and yelling on a warm April night.
Elected figures in Congress and around the country reacted quickly.
“If the story is correct, the Supreme Court is ready to impose the largest restriction of rights in the past fifty years – not just on women, but on all Americans,” House Speaker Nancy Pelosi and Senate Majority Leader Chuck Schumer said in a joint statement.
People seeking abortions may travel to New York, according to New York Governor Kathy Hochul, a Democrat. “Anyone in need of medical attention will be welcomed with open arms in our state.” In New York, abortion will always be safe and accessible,” Hochul declared in a tweet.
“We will let the Supreme Court speak for itself and wait for the Court’s formal ruling,” Mississippi Attorney General Lynn Fitch said in a statement. Local leaders, on the other hand, praised the proposal.
“This returns decision-making to the states, which is exactly where it should have always been,” Mississippi state Rep. Becky Currie said.
Congress might also act, however a measure to enshrine Roe’s protections in federal law, which passed the House last year with just Democratic support, has stuck in the Senate.
At the Supreme Court’s December hearings, all six conservative justices indicated that they would support the Mississippi statute, and five posed questions that hinted at an overturning of Roe v. Wade.
Only Chief Justice John Roberts seems willing to take the more modest step of sustaining the 15-week restriction, despite the fact that doing so would be a severe limitation of abortion rights.
Until now, the Supreme Court has permitted states to limit but not prohibit abortion prior to viability, which is usually approximately 24 weeks.
The three liberal justices on the court appeared to be leaning toward dissent.
It’s impossible to know what efforts are being made behind the scenes to sway the votes of any of the justices. If Roberts wants to keep Roe alive, he only needs one more conservative vote to give the court the majority it needs to overturn the abortion precedent.
According to the Guttmacher Institute, a pro-abortion rights think tank, twenty-six states are guaranteed or likely to restrict abortion if Roe v. Wade is reversed. Apart from Texas, 22 states have previously enacted whole or near-total prohibitions on the books presently barred by Roe. Due to its distinctive civil enforcement system, the Supreme Court has already permitted the state’s legislation prohibiting it after six weeks to take effect. If Roe is overturned, four other states are expected to immediately implement restrictions.
Meanwhile, sixteen states and the District of Columbia have passed legislation protecting abortion access.
Eight conservative states have already taken steps to restrict abortion rights in anticipation of a judgment repealing or gutting Roe. Oklahoma, for example, recently enacted multiple measures, including one that makes performing abortions a crime, which goes into effect this summer. It, like several anti-abortion measures approved this year in GOP-led states, has no exceptions for rape or incest, only to preserve the mother’s life.
California, which has enacted laws making the operation less expensive and is exploring additional acts to declare itself a “abortion sanctuary” if Roe is reversed, is one of eight Democratic-leaning states that have safeguarded or extended access to the surgery.
To some court watchers, the document appeared to be legal. “There are lots of signals the opinion is legit,” tweeted veteran Supreme Court lawyer Neal Katyal, who worked as a clerk to Justice Stephen Breyer and thus had access to drafts. It would be difficult to falsify the length and breadth of the analysis. It claims to have been authored by Alito, and it certainly sounds like him.”