SCOTUS Leak Reveals Draft Majority Opinion on Potential Overturn of Landmark Roe v Wade Ruling
01:31 GMT 03.05.2022 (Updated: 03:46 GMT 03.05.2022)
© Photo : ERIN SCOTTSecurity fencing surrounds the U.S. Supreme Court
© Photo : ERIN SCOTT
Justice Samuel Alito’s draft opinion, which illustrates a direct assault on the landmark 1973 decision of Roe v Wade allowing women the federal constitutional right to abortion, was circulated inside the Supreme Court and obtained by Politico.
A majority of the justices on the US Supreme Court have indicated they are prepared to overturn the right to abortion, a constitutional protection granted under the landmark Roe v Wade decision in January 1973, a leaked draft opinion revealed late Monday.
Obtained by Politico, the 67-page document, which was authored and circulated by Justice Samuel Alito, is described as an initial draft majority opinion and would effectively revoke federal abortion protections and grant authority back to the state level.
However, it’s possible that the court may change its tide before the final ruling which is expected by either late June or early July. Alito’s draft opinion was labeled as a proposed majority opinion, and with a 6-3 conservative majority Supreme Court. Politico reported that the majority included Justices Clarence Thomas, Neil Gorsuch, Amy Coney Barrett and Brett Kavanaugh.
Citing a source, the outlet further reported that Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan were reportedly working on "one or more dissents." Next steps by Chief Justice John Roberts were not detailed.
The draft opinion is an unapologetic, full-on attack on Roe v. Wade. In his opinion Alito writes, "The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.”
The court appears determined to return to the days before 1973 when abortion was prohibited on "pain of criminal punishment." The sentiment is an eerie echo of the horrific and controversial anti-abortion law signed by Texas State Governor Gregg Abbott, which banned the procedure as early as six weeks into pregnancy, despite the fact that late-term abortions are a medical necessities that could save a woman's life if the pregnancy becomes dangerous.
To make matters worse, the Texas anti-abortion bill also created a "private right of action," meaning any private citizen would be allowed to threaten healthcare providers with a lawsuit of $10,000 in "damages." This aspect of the bill was opposed by 74% of Americans, 90% being Democrat and 57% being Republican.
Alito's draft not only attacked Roe v Wade, but Planned Parenthood v Casey, as well. Casey is the 1992 landmark court case in which the Supreme Court upheld a right to have an abortion based on the ruling of Roe, and challenged five provisions of the Pennsylvania Abortion Control Act of 1982 which required a woman be given 24 hours to think about the abortion once "informed," a spousal notice and/or a parental consent.
“We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision," wrote Alito in his draft opinion.
"We can only do our job, which is to interpret the law, apply longstanding principles of stare decisis, and decide this case accordingly. We therefore hold that the Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.”
“Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division," Alito adds.
The opinion was reported as being drafted in February, with it being circulated on the federal bench starting February 10, 2022. At present, it remains unclear whether the draft has undergone any additional changes.
Despite Alito claiming that he and other justices do not know what the "society" - which they are supposed to ensure with the "promise of equal justice under law" - will do in response to overturning what is recognized to all Americans as settled law, some organizations have already begun to speak out.
Planned Parenthood, a health care provider in the trenches of the fight for abortion rights took to Twitter to remind women of their current constitutional rights.
Let's be clear: This is a draft opinion. It’s outrageous, it’s unprecedented, but it is not final.— Planned Parenthood (@PPFA) May 3, 2022
Abortion is your right — and it is STILL LEGAL. https://t.co/s9R7w99n71
While eight conservative states including Mississippi, Texas, and Oklahoma have already demonstrated their desire to do away with abortion rights, blue states may remain a safe haven, for now.
New Jersey Governor Phil Murphy took to Twitter to reassure his constituents. "Access to reproductive health care remains available to anyone who needs it in New Jersey," wrote Murphy on Twitter.
I want to assure every New Jerseyan that today’s news about the Supreme Court does not change access to abortion in our state.— Governor Phil Murphy (@GovMurphy) May 3, 2022
Access to reproductive health care remains available to anyone who needs it in New Jersey.
House Speaker Nancy Pelosi (D-CA) and Senate Majority Leader Chuck Schumer (D-CA) issued a jointed statement shortly after news broke Monday, blasting the developments.
"Several of these conservative Justices, who are in no way accountable to the American people, have lied to the US Senate, ripped up the Constitution and defiled both precedent and the Supreme Court’s reputation."
A spokesperson for the US Supreme Court has stated that the federal bench will not be commenting on the development. As for the White House, the Biden administration has not yet issued any statement on the leaked opinion, although reports have suggested remarks will be given Tuesday.
As noted by Politico, the leak of the opinion marks the first time in recent memory where a draft decision belonging to the high court has been disclosed to the public.