A leaked draft of an impending Supreme Court opinion shows a majority of justices voting to overturn the rights to abortion access enshrined in ‘Roe v. Wade.’
The Supreme Court has issued a draft opinion that would effectively strike down Roe v. Wade, allowing individual states to make their own decisions about abortion.
The leak was first reported by POLITICO on Monday.
The authenticity of the draft has since been confirmed by Supreme Court Chief Justice John Roberts, who pledged an investigation into the source of the leak.
According to POLITICO, the draft is a “full-throated, unflinching repudiation” of Roe v. Wade. The 1973 decision guaranteed federal, constitutional protection for abortion access, while a later ruling in 1992 maintained women’s right to abortion services.
However, the majority opinion, penned by Justice Samuel Alito, says that the court erred in ever siding with Roe.
“Roe was egregiously wrong from the start,” Alito wrote, writing on behalf of a narrow five-justice majority.
“We hold that Roe and Casey must be overruled,” Alito said in the document, entitled ‘Opinion of the Court.’ “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
POLITICO notes that deliberations on controversial cases are often subject to change, and that the release of an authenticated draft opinion does not mean that the court cannot or will not reverse course.
The court’s opinion, adds POLITICO, will not take effect until it is formally released to the public, although such a publication is likely within the next one to two months.
A “person familiar with the court’s deliberations” told POLITICO that Alito, along with four other Republican-appointed justices—Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—had voted to overturn Roe v. Wade after hearing oral arguments in December.
The remaining three Democrat-appointed justices—Stephen Breyer, Sonia Sotomayor, and Elena Kagan—are in the process of authoring one or more dissents.
Chief Justice John Roberts’ opinion is currently unclear.
While Roberts was once viewed as a staunchly conservative justice, he has increasingly come to side with his liberal colleagues in recent years.
The composition of the vote, said the same source, remained unchanged as of this week.
POLITICO notes that, in the tentative majority opinion, Alito said that the Roe court’s “survey of history ranged from the constitutionally irrelevant to the plainly incorrect,” saying his predecessors’ reasoning was “exceptionally weak.”
“The inescapable conclusion,” Alito wrote, “is that a right to abortion is not deeply rooted in the Nation’s history and traditions.”
“We emphasize,” he added, “that our decision concerns the constitutional right to abortion and no other right.”
“Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” Alito said.
Alito also pre-empted criticism of abortion laws, saying that they do not, by any means, reflect the “subjugation” of women in American society.
“Women are not without electoral or political power,” he said. “The percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so.”
Alito, in his draft opinion, also said that the court cannot—and should not—allow considerations of public discourse to sway its hand.
“We cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work,” he said. “We do not pretend to know how our political system will respond to today’s decision overturning Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision.”
The court’s final, public opinion is expected in the coming months.