Leaked draft opinion signals Supreme Court overturning Roe v. Wade

The Supreme Court is undoing Roe v. Wade, the landmark 1973 case that led to the creation of a constitutional right to abortion, according to a leaked draft majority opinion.

The document, obtained by Politico, is for the case known as Dobbs v. Jackson Women’s Health Organization and references the 1992 ruling in Planned Parenthood v. Casey as well as Roe. The ruling asserts that “the authority to regulate abortion must be returned to the people and their elected representatives.”

WHAT TO KNOW ABOUT DOBBS, THE BIGGEST TEST FOR ABORTION RIGHTS IN YEARS

“We hold that Roe and Casey must be overruled,” Justice Samuel Alito said in the opinion, which was circulated within the court.

“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” he added.

A Washington Examiner reporter saw barricades that had been set up outside the Supreme Court on Monday evening. A small gathering of a couple of dozen people began to gather after the news broke, followed by as many as 400-500 people just after 11 p.m. Monday.

“We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey,” the leaked draft ruling says. “And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision.”

The leaked draft opinion stems from the case challenging Mississippi’s restrictive abortion law that banned procedures after 15 weeks of pregnancy. The law first took effect in March 2018 and followed a near-immediate lawsuit by the last remaining abortion clinic, Jackson Women’s Health Organization.

The draft ruling was authored by Alito and circulated around the high court as early as Feb. 10. A leak such as this is unprecedented, as no draft decision in the contemporary history of the court has been revealed while a case is still pending a ruling. However, the Washington Post released a report later Monday noting the decision in Roe was initially leaked to a Time magazine reporter in January 1973.

Alito notably wrote the court has “long recognized” that stare decisis, the legal principle that courts follow precedent, is “‘not an inexorable command,’ and it ‘is at its weakest when we interpret the Constitution,'” according to the draft opinion.

“Some such supporters have been motivated by a desire to suppress the size of the African American population,” Alito listed as one of the many concerns raised by proponents against the draft opinion.

“It is beyond dispute that Roe has had that demographic effect. A highly disproportionate percentage of aborted fetuses are black,” Alito wrote, adding, “We do not question the motives of either those who have supported and those who have opposed laws restricting abortion.”

Politico’s Josh Gerstein, who obtained the draft opinion, told MSNBC’s Rachel Maddow on her show Monday evening, “We’re very confident in [the] authenticity of this draft majority opinion both in the way that we obtained it and other information that we got that supports its authenticity and makes us believe that it is genuine.”

Gerstein added that while Alito was the primary author of the opinion, “there are parts of this opinion that sound a lot like Justice Clarence Thomas when you read through it.”

The term “abortionist” appears several times in the text of the draft, a term that has been used by Justice Clarence Thomas and one that the other eight justices do not typically utter in their rhetoric on the matter.

Thomas is the only present justice on the high court who has remained present since the Supreme Court reaffirmed its previous precedent on legalizing abortion in 1992.

Gerstein also said the “only ambiguity” is whether Chief Justice John Roberts “would make it a 6-3 decision or a 5-4 decision if he chose to side with the more liberal members of the court.”

However, Roberts has not signaled a willingness to completely overturn the landmark 1973 ruling as seen in his arguments over the case last fall, when he sought a way to uphold Mississippi’s 15-week ban on abortion after gestation without rejecting the Roe framework.

The court’s holding will not be final until it is published, likely in the next two months.

When justices heard arguments over Dobbs in December, the 6-3 Republican appointee majority raised significant doubts about the jurisprudence behind the 1973 and 1992 cases that established the right to abortion in the United States, Roe and Casey, respectively.

The leaked draft did not include any documented dissent from the three Democratic-appointed justices on the high court. Justice Sonia Sotomayor in particular raised vehement objections to dismantling Roe during arguments over the case in December.

“The right of a woman to choose, the right to control her own body, has been clearly set … since Casey and never challenged. You want us to reject that line of viability and adopt something different,” Sotomayor said during oral arguments.

Gerstein’s reporting prompted an uproar on the Left and the Right, with much of the focus on the leak.

“I will say, if this is the Court’s opinion, it’s a heck of an opinion. Voluminously researched, tightly argued, and morally powerful,” said Sen. Josh Hawley (R-MO).

Sen. Bernie Sanders (I-VT), who opposed the draft opinion vehemently alongside Democrats, called on Congress to pass legislation that “codifies Roe v. Wade as the law of the land in this country NOW,” arguing that if there are not enough senators to form a supermajority, “and there are not, we must end the filibuster to pass it with 50 votes.”

Brian Fallon, top spokesman for Hillary Clinton’s 2016 presidential campaign and now co-founder and executive director of Demand Justice, called on “All Democrats” to show a similar sense of urgency “as the clerk who apparently risked his or her career to sound this alarm.”

“Those on the inside know best how broken the institution is. We should listen,” said Fallon.

The Susan B. Anthony List, an anti-abortion group that filed an amicus brief urging the court to uphold Mississippi’s 15-week abortion limit, has been working in tandem with legislatures to ensure “maximum preparedness” for a post-Roe environment.

“We’ve been engaged in a decadeslong education battle to make Americans aware about this reality because that doesn’t jive with the majority of Americans,” said Mallory Carroll, vice president of communications for the group, in an interview with the Hill.

Prominent legal commentators raised concerns over the unprecedented leak, warning it could further erode public trust in an institution that is already waning, according to recent polls.

Law professor Laurence Tribe argued that Alito’s opinion, if final, would “unravel many basic rights beyond abortion and will go further than returning the issue to the states.”

“It will enable a GOP Congress to enact a nationwide ban on abortion and contraception,” Tribe wrote in a tweet.

George Washington University law professor Jonathan Turley lamented the leak from the court over what “was always the blockbuster decision of the term,” Dobbs.

“This leak will cause lasting damage to the court, which has long relied on the integrity of members and clerks to preserve institutional secrecy and integrity,” Turley tweeted.

In recent months, Republican-led states have adopted similarly restrictive abortion laws, including a six-week ban on abortion after gestation in Texas, which went into effect in September and is enforced by private individuals who may file lawsuits against anyone seeking abortion procedures or people who aid and abet an abortion process.

In December, the high court sent back the lawsuit over the Texas abortion law to the 5th U.S. Circuit Court of Appeals and denied a request by the challenging clinics and physicians to send the matter to a trial judge who previously blocked the law. Most recently, Oklahoma adopted a similar law banning abortion after six weeks of gestation, also making it a felony to perform a procedure.

If Roe is overturned, abortion would become illegal in 13 states, including Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, and Wyoming.

As of April, 22 states are set to ban or limit abortion access immediately if Roe is overturned.

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The Washington Examiner contacted the Supreme Court Public Information Office. Draft reports are not final, and a ruling in the Dobbs case is expected anytime between now and the end of June.