The Supreme Court is poised to overturn the landmark 1973 decision in Roe v. Wade that protects the federal right to abortion, according to a draft majority opinion published Monday evening by Politico.
The 67-page document, described as an initial draft majority opinion, would effectively eliminate abortion protections at the federal level and hand authority over abortion access to the states. Penned by Justice Samuel Alito, one of the court’s staunchest conservatives, the opinion concludes by declaring that Roe and the court’s 1992 decision in Planned Parenthood v. Casey have no grounding in the Constitution.
“We now overrule those decisions and return that authority to the people and their elected representatives,” the opinion states. Under those cases, states were prohibited from banning abortion prior to fetal viability, around 23 weeks.
A spokesperson for the Supreme Court had no comment in response to questions.
The justices’ votes are often fluid up to the point of an opinion’s publication, and the draft may have changed since February, when it was purportedly written. A published opinion from the court is expected sometime within the next two months.
The leak of the draft opinion marks the most stunning breach in recent memory of the secrecy that typically shrouds the Supreme Court and its inner-workings, and it is likely to further tarnish an institution whose perception among the public has recently fallen to historic lows.
If the court indeed follows the draft’s contours and strikes down Roe in coming months, it would send political shockwaves through the country ahead of the November midterm elections. According to a December poll by Harvard CAPS-Harris, a majority — 54 percent — of Americans said they oppose overturning Roe v. Wade.
The Hill could not independently verify the document’s authenticity. But Politico, in an editor’s note, said it undertook an extensive review and is “confident of the authenticity of the draft.”
Alito, in the draft opinion, employed language that mirrored remarks he made during a December oral argument in which he said he viewed Roe as “egregiously wrong.”
The issue before the court was a Mississippi law that bans virtually all abortions after 15 weeks of pregnancy. Deep-red Mississippi, in court papers, explicitly asked the justices to use the case as a vehicle to overturn the landmark 1973 decision that first recognized a constitutional right to abortion existing in the 14th Amendment’s due process clause.
“Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences,” Alito’s majority opinion draft states. “And far from bringing about a national settlement of the abortion issue, Roe and Casey have inflamed debate and deepened division.”
Politico, citing an unnamed source, said that majority also included fellow conservative Justice Clarence Thomas as well as former President Trump’s three nominees: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
Many Republican officials urged the court to adopt this approach, including a dozen GOP governors who urged the justices in a friend-of-the-court brief to use the Mississippi case to eliminate federal abortion protections and let states regulate the procedure. The 2018 Mississippi law at issue in the case, which has been paused during litigation, is just one of hundreds of abortion measures that state legislatures passed in recent years.
Justice Sonia Sotomayor, the court’s most outspoken liberal, issued a dire warning to her fellow justices during the December oral argument about the repercussions of turning over the issue of abortion to the states.
She suggested such a move would be seen as highly politicized and merely a reflection of the court’s new lopsided 6-3 conservative majority resulting from the seating of Trump’s three nominees.
“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” she asked Mississippi’s solicitor general. “I don’t see how it is possible.”