Supreme Court set to overturn Roe v. Wade, leaked draft opinion shows
Until an official opinion is signed, Roe v. Wade remains
The Supreme Court is poised to strike down Roe v. Wade, according to an unprecedented leak of a draft opinion written by Justice Samuel Alito.
The draft leak obtained by Politico was written in early February. It was not immediately clear if it has been rewritten or revised. The Court has declined to verify or disavow the document. Analysts have suggested the leak may represent an attempt to pressure a Supreme Court justice to change his or her vote on the pivotal case.
Until an official opinion is signed and released by the Court, Roe v. Wade remains the law of the land. Drafts circulate and change, as do votes.
Should Roe v. Wade be overturned, abortions would be left for the states to decide.
“We hold that Roe and Casey must be overruled,” Justice Samuel Alito writes in the document, labeled the “Opinion of the Court” for the case Dobbs v. Jackson Women’s Health Organization. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
Alito notes that at the time the Court decided Roe, 30 states had active bans on abortion throughout pregnancy.
Supreme Court Justice Samuel Alito, official portrait (Supreme Court of the United States)
He notes that Americans hold “sharply conflicting views” on the subject. “Some believe fervently that a human person comes into being at conception and that abortion ends an innocent life. Others feel just as strongly that any regulation of abortion invades a woman’s right to control her own body and prevents women from achieving full equality. Still others in a third group think that abortion should be allowed under some but not all circumstances, and those within this group hold a variety of views about the particular restrictions that should be imposed.”
Fox News has reached out to the White House for comment.
Disclosing a draft opinion in a Supreme Court case is an extremely rare occurrence. Jonathan Turley, Harvard law professor emeritus, appeared on Fox News ‘Hannity’ Monday evening to discuss the report, saying he could not think of a historical precedent.
Politico reported that five of the original votes to overturn Roe remain “unchanged *as of this week*,” but it did not report that they have all said they will join the Alito opinion. SCOTUS Blog suggested that the leak may aim to pressure a justice to switch his or her vote.
A crowd of people gather outside the Supreme Court, Monday night, May 2, 2022, in Washington. (AP Photo/Anna Johnson)
“At least 1 is apparently uncommitted. Hence the leak?” the Supreme Court analysis website tweeted.
“Those interested in who leaked the draft should wonder why Alexander Ward — a national security reporter — shares the byline,” SCOTUS Blog added. “The leaker would insist that their identity be incredibly tightly held. Politico would not assign someone who didn’t have to be on the story.”
RealClearInvestigations senior writer Mark Hemingway suggested that someone leaked the draft opinion as part of a public pressure campaign to reverse the decision.
“Leaking a draft opinion is a scumbag move designed to create public pressure against the court before the decision is finalized,” Hemingway tweeted.
CNN’s Mike Valerio claimed that Chief Justice John Roberts, a justice known for upholding precedent whom former President George W. Bush appointed, does not want to overturn Roe.
“Roberts does NOT want to completely overturn Roe v Wade, meaning he apparently would be dissenting from Alito’s draft opinion, likely w the court’s 3 liberals, sources tell CNN,” Valerio tweeted. “Roberts is willing, however, to uphold MS law banning abortion at 15 weeks, CNN learned.”
Apparently anticipating a similar move from the Court, states with Democratic legislatures have passed laws codifying abortion in case Roe gets overturned. Gov. Jared Polis, D-Colo., signed a law creating a “fundamental right” to abortion and denying any right for the unborn. In 2019, Gov. Andrew Cuomo, D-N.Y., signed a law codifying abortion rights and explicitly removing protections from unborn infants. The Connecticut legislature has passed a bill aimed at combating abortion restrictions in other states.
Meanwhile, states with Republican legislatures have passed laws restricting abortion, with Texas and Idaho passing laws allowing private citizens to file civil suits against individuals who aid or abet abortions after a fetal heartbeat is detected, at about 6 weeks of pregnancy.
While many polls suggest Americans support Roe, in-depth polling reveals a more complicated picture. When asked about their opinion on abortion during specific periods of pregnancy and other situations, 71% of Americans say they support restricting abortion to the first three months of pregnancy (22%), or in other limited circumstances such as rape and incest (28%), to save the life of the mother (9%) or not at all (12%). Only 17% of Americans said abortion should be available during an entire pregnancy and 12% said it should be restricted to the first six months.