WASHINGTON (AP), A draft opinion suggests that the U.S. Supreme Court may be ready to reverse the 1973 Roe v. Wade decision, which legalized abortion in the United States. This is according to a Politico report published Monday.
The decision to overrule Roe could lead to abortion bans across roughly half of the states, which could have major implications for this year’s elections. It's not clear if the court will rule on the draft, as opinions can change during the drafting process.
The Politico report, regardless of its outcome, represents an extraordinarily rare breach of the court’s secretive deliberation process and on a case that is of exceeding importance.
The draft opinion states that "Roe was egregiously incorrect from the beginning." Justice Samuel Alito signed it, who is a member the court's conservative 6-3 majority and was appointed by President George W. Bush.
In a case called Dobbs, the document was referred to as a "1st draft" of the "Opinion by the Court". It was part of a challenge to Mississippi's ban against abortion after 15 weeks. This case is known as Dobbs.
The court will rule on the case before its term expires in June or July.
In effect, the draft opinion states that there is no constitutional right for abortion services. Individual states would be able to regulate or ban the procedure more strictly.
"We believe that Roe and Casey should be overruled," it says. This is referring to the 1992 case Planned Parenthood, which affirmed Roe’s constitutional right to abortion services. However, the state could place restrictions on the practice. "It's time to listen to the Constitution and bring the abortion issue back to the elected representatives of the people."
A spokeswoman for the Supreme Court stated that the court did not comment. The Associated Press was unable to immediately confirm the authenticity and date of the Politico draft, which was posted in February.
Politico stated that it had received a draft opinion from someone familiar with Mississippi court proceedings and other details to support the document's authenticity.
According to the draft opinion, at least five justices voted to overrule Roe & Casey when they met privately shortly after hearings in the case on December 1. Alito was given the task of writing Alito's majority opinion.
Votes and opinions aren't final until a court announces a decision or, in the case of a coronavirus pandemic change, is posted on the court website.
This report is coming amid a legislative push in several Republican-led States to limit abortion -- Oklahoma being the latest -- even before the court issues their decision. Critics have claimed that women with low incomes will be burdened by the new restrictions.
The leak sparked the political reverberations expected to result from the Supreme Court's final decision in the 2012 midterm elections. Already, politicians from both sides were using the leak to fundraise for their supporters and energize them on either side.
A December AP-NORC poll found that Democrats are increasingly valuing protecting abortion rights as a top priority for the government.
Another poll shows that Americans are not eager to see Roe rewritten. AP VoteCast polled 69% of the 2020 presidential election voters to determine that the Supreme Court should keep Roe v. Wade as it is. Only 29% said the court should reverse the decision. AP-NORC polling shows that the majority of Americans favor legalizing abortion in all or most cases.
However, Americans still have nuanced views on abortion policy. Many Americans don't believe that abortion should be allowed after the first trimester. They also think that women shouldn't be able get legal abortions for any reason.
In the draft Alito stated that the court cannot predict the reactions of the public and should not try. According to Politico, Alito stated in the draft opinion that "we cannot allow our decisions be affected by any extraneous influence such as concern over the public's response to our work."
After the publication of the Politico report, people on both sides quickly gathered at the Supreme Court to wave signs and chant on a warm spring night.
Representatives in Congress and other elected officials across the country quickly reacted.
The top two Democrats in Congress, Nancy Pelosi, House Speaker, and Chuck Schumer, were in a joint statement. They stated that "if the report is correct, the Supreme Court will inflict perhaps the most severe restriction of rights in the last fifty years -- not only on women, but all Americans.
New York Governor Kathy Hochul, a Democrat also said that people looking for abortions can travel to New York. Our state will openly welcome anyone who requires access to healthcare. Hochul tweeted that abortion will always be safe and accessible in New York.
Lynn Fitch, Mississippi Attorney General, stated in a statement that "we will let the Supreme Court talk for itself and wait until the Court's official opinions." However, local officials were highly praised the draft.
"This places the decision-making back in the hands of states, which was where it should always have been," stated Becky Currie, Mississippi state representative.
Congress could also act even though a bill to write Roe's protections into federal legislation was stalled by the Senate, despite it passing the House with only Democratic votes last year.
In December, the Supreme Court heard arguments from six conservative justices. Five of them asked questions suggesting that Roe and Casey could be overruled.
Only Chief Justice John Roberts appeared to be willing to accept the minor step of upholding a 15-week ban. However, that would still be a significant weakening in abortion rights.
The court has up to now allowed states to regulate, but not ban, abortions before the point where viability is reached, which is approximately 24 weeks.
It seemed probable that the court's three liberal justices would be in dissent.
It is impossible to see the hidden efforts of those working behind the scenes to influence justice's votes. Roberts could easily pick one more conservative vote to deny the court of a majority in order to let Roe survive.
According to the Guttmacher Institute, 26 states are likely or certain to ban abortion if Roe V. Wade is overturned. Out of the 22 states that have complete or close-total abortion bans, 22 are blocked by Roe. Due to its unusual civil enforcement structure, the Supreme Court has allowed the state's law to be implemented. If Roe is overturned, four more states are likely to pass bans quickly.
Sixteen states and District of Columbia have, in contrast, protected abortion access under state law.
Eight conservative states have taken steps to limit abortion rights this year in anticipation of Roe being overturned or eliminated. Oklahoma, for instance, has passed several bills over the past weeks that make it a crime to perform an abortion. It does not include exceptions for rape and incest. This bill, like many other anti-abortion laws passed by GOP-led states this fiscal year, is only intended to protect the life of the mother.
Eight Democratic-leaning States protected or expanded access, including California. California has already passed legislation to make the procedure more affordable and is currently considering other bills to create an "abortion sanctuary" in the event Roe is repealed.
Some court followers thought the draft was legitimate. Neal Katyal, a veteran Supreme Court lawyer, was a clerk to Justice Stephen Breyer, and so could see drafts. He wrote on Twitter: "There's a lot of signs the opinion is legitimate. It would be difficult to fake the length and depth of the analysis. It is written by Alito, and sounds very much like him.