WASHINGTON — The Supreme Court voted personally to overturn the landmark Roe v. Wade decision that guarantees the right to abortion for nearly half a century, according to a leaked February draft advisory published online Monday evening by Politico.
In the draft opinion, written by Judge Samuel A. Alito Jr., a majority of the court voted to topple Roe, Politico said. Justice Alito called it a wrong decision and said the controversial issue, which has animated political debate in the United States for more than a generation, should be decided by politicians, not the courts.
“We believe that Roe and Casey should be overruled,” Judge Alito writes in the document, dubbed the “Opinion of the Court,” citing a second decision that reaffirmed Roe. “It is time to respect the Constitution and return the issue of abortion to the elected representatives of the people.”
The concept posted by Politico is consistent in major and minor ways with the Supreme Court’s published opinions, including structure, length, typography, and how legal citations are rendered. The assertive and sometimes cutting tone is very similar to other key opinions of Justice Alito.
The release of the 98-page document is unprecedented in modern court history: early drafts of opinion have almost never been leaked before the final decision has been announced, and never in such a sweeping case. And early drafts of opinions often change by the time the court’s decision is announced.
Shortly after the article was published Monday night, Politico’s editor-in-chief, Matthew Kaminski, and executive editor, Dafna Linzer, sent an email to newsroom staff stressing its authenticity. In the memo, Mr Kaminski and Ms Linzer said the article has undergone an “extensive review process”, describing it as “clear news of high public interest”.
If the judges announce a decision along the lines of the early, leaked draft, it would mark a sweeping change in US law and politics just months before the congressional midterm elections that will decide who will control power on Capitol Hill.
Abortion has long split the two parties — and the country — although it had been withdrawn as a focal point in the presidential election while remaining a stimulant issue for many. A court ruling along the lines of the one in the early draft could spark new political battles in Congress and in states across the country over whether and how to restrict proceedings.
According to the Politico report, Clarence Thomas, Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett were the judges supporting Judge Alito’s opinion. The news organization said judges Stephen G. Breyer, Sonia Sotomayor and Elena Kagan were working on dissent. It was not clear how Chief Justice John G. Roberts Jr. intended to vote.
Roe v. Wade, which established a constitutional right to abortion in a landmark 1973 case, has been the focus of US case law ever since. In the language of the court, it is precedent that has cemented women’s basic rights to access legal abortion. Over the years, the court has accepted limitations on that right, but has not deviated from the basic legal standard set forth by Roe.
The current court — which has six Conservative and three Liberal judges — has provided indications over the past year that it may be willing to reconsider that stance.
During Supreme Court debates in December, conservative judges indicated their willingness to scale back, if not undo, federal abortion protections, leaving most of the regulation to individual states.
In more than two dozen conservative states, lawmakers have drafted bills that would effectively ban abortion if the court overturned Roe v. Wade. If the court embraces Judge Alito’s draft opinion as a final position, it would clear the way for those bills to quickly become law.
The draft opinion contains well-known arguments against Roe. It states that the Constitution is silent on abortion and that nothing in its text or structure supports a constitutional right to abortion. Roe, the design goes on, is so blatantly wrong that it doesn’t deserve to be kept as a precedent. The right approach, the draft says, is to send demand back to the states.
The Mississippi law challenged in the case prohibits abortion after 15 weeks of pregnancy, and Judge Alito could have taken a middle ground advocated by Chief Justice Roberts when the case was argued in December: uphold the law and leave questions about the fate of Roe for another day.
According to Alito’s draft justice, a majority rejected that approach.
If the draft opinion or something like that is eventually released, it will cause breaches in the court that could test its legitimacy.
During the altercation, the three liberal members of the court said overruling Roe soon after a change in court membership would damage the court’s authority. Indeed, Justice Sonia Sotomayor said this would pose an existential threat.
“Will this institution survive the stench it creates in the public perception that the Constitution and its reading are merely political acts?” she asked.
“If people really believe it’s all political, how will we survive?” she asked. “How will the court survive?”
The leak of the draft advice caused a shock through Washington on Monday evening. The revelations from the draft opinion once again place the nine judges at the center of one of the most controversial issues in American life.
But the leak could also spark a fierce new political debate before the judges make a final decision.
Conservatives opposed to abortion rights were quick to laud Justice Alito’s conclusions as the right ones for the country, praising him for the legal reasoning they’ve had in the court of public opinion for decades.
“We don’t know if the rumors about Roe’s end are still true, but we know ending Roe is the right thing to do by handing the matter back to ‘we the people’ of a few judges with an agenda,” he said. Kristan Hawkins, the president of Students for Life of America. “You won’t find ‘abortion’ in invisible ink in the Constitution, undiscovered until seven men saw it in 1973. Ending unborn human life is and has always been a judicial error.”
Senator Tom Cotton, Republican from Arkansas, tweeted monday night that “Roe was hugely wrong from the start and I pray that the Court follows the Constitution and allows states to once again protect the unborn.”
But he also attacked the leak of the draft opinion, saying that the Supreme Court and the Justice Department “should immediately investigate this leak using all necessary investigative tools.”
Democratic lawmakers and liberal activists also criticized the leak. But many were quick to take the news as a key reason voters should support Democrats in the fall election.
“If true, this Republican attack on women’s access to abortion, contraception and health care has dramatically increased the stakes in the 2022 election,” said Christie Roberts, executive director of the Democratic Senatorial Campaign Committee. “At this critical juncture, we must protect and extend the majority of Democrats in the Senate with the power to confirm or dismiss Supreme Court justices.”
Cecile Richards, who chaired Planned Parenthood from 2006 to 2018 while Congress and the state legislature increased restrictions on reproductive health, said that “ending legal abortion will not end abortion. It will simply mean that women are no longer safe in this country, and that is at the feet of the Republican Party.”
Monday night on Twitter, the news sparked a debate over which political party could benefit from the early disclosure of the court’s potential decision. Many argued that Democrats would use the report to boost their core voters.
Senator Patty Murray, a Washington Democrat and member of her party’s Senate leadership, vowed to do just that.
“After years of sounding the alarm, it’s time to break the glass,” she wrote in a statement. “We have to fight back with everything we have now. The right to abortion is at stake and I will never stop fighting to protect it.”
Reporting contributed by Carl Hulse† Emily Cochrane and Elizabeth Dias from Washington, and Kate Zernike† Benjamin Mullin and Katie Robertson From New York.