The Supreme Court has voted to strike down Roe v. Wade, the landmark decision that legalized abortion in the United States, a bombshell report revealed on Monday.
The news sent shock waves throughout Washington D.C. with Democrats vowing to codify abortion into law and Republicans celebrating the news.
The opinion draft – originally obtained by Politico – was written by Justice Samuel Alito, one of the six justices appointed by Republican presidents on the nine-member court, repudiating both Roe and the 1992 Planned Parenthood vs. Casey decision.
‘Roe was egregiously wrong from the start,’ Alito writes. ‘We hold that Roe and Casey must be overruled,’ he continues in the document, titled ‘Opinion of the Court.’
‘It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.’
Politico noted that this is the first such case in modern history of a Supreme Court draft decision being leaked to the public while the case was still pending.
That led to speculation it was leaked ahead of an official announcement in the hopes public outrage could temper the court’s decision.
The court, notably, did not deny the legitimacy of the draft opinion, which could be altered before it is released to the public.
A spokesperson for the Supreme Court said: ‘The Court has no comment.’
The Supreme Court is planning to vote to strike down the decision of Roe v. Wade, long considered a vanguard of guaranteeing a right to an abortion in the United States.
The opinion draft – originally obtained by Politico – was written by Justice Samuel Alito, one of the six justices appointed by Republican presidents on the nine-member court
‘Roe was egregiously wrong from the start,’ Alito writes. ‘We hold that Roe and Casey must be overruled,’ he continues in the document, titled ‘Opinion of the Court’
‘It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,’ Alito continues
Politicao executive editor Dafna Linzer sent a note to staff after the story posted, expressing confidence in the story and their verification of the draft opinion.
‘After an extensive review process, we are confident of the authenticity of the draft. … We take our responsibilities to our readers with the greatest seriousness,’ she noted.
Politico posted the entire draft opinion online.
If the decision is adopted, it would return the issue of abortions to the states with about half of the 50 states set to immediately impose broad abortion bans. Any state could still legally allow the procedure.
‘There are lots of signals the opinion is legit,’ wrote Supreme Court attorney Neal Katyal on Twitter. ‘The length and depth of analysis, would be very hard to fake. It says it is written by Alito and definitely sounds like him. It’s 60+ pages long.’
A source who claimed they were familiar with the arguments said that four of the five remaining Republican-appointed justices were voting with Alito in conference in Decemeber.
Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett all voted to strike down Roe.
The source adds that Democrat-appointed justices Stephen Breyer, Sonia Sotomayor and Elena Kagan are working on dissents.
What remains unclear his how Chief Justice John Roberts, appointed by George W. Bush, will vote.
Draft opinions can change and the ruling will not be final until it is published, likely in the next two months.
If the Alito draft is adopted, it would rule in favor of Mississippi in Dobbs v. Jackson Women’s Health Organization – a case involving the state’s attempt to ban most abortions after 15 weeks of pregnancy.
The draft opinion runs 98 pages, including a 31-page appendix of historical state abortion laws, Politico notes in its report. The document is replete with citations to previous court decisions, books and other authorities, and includes 118 footnotes. The appearances and timing of this draft are consistent with court practice.
Katyal described how the Supreme Court handles its decision making process.
‘After oral argument the Justices take a tentative vote. This would have happened in December. The senior most justice in the majority gets to assign the opinion. That might have been Roberts, but doubtful since Alito wrote this draft,’ he noted on Twitter.
‘Now, once the draft is circulated, the justices in dissent will write an opinion. That’s presumably happening now. But the tenative vote seems strong, and Chief Justice Roberts is irrelevant if the 4 + Alito hold with their tentative votes,’ he added.
Republican appointed-Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett all voted to strike down Roe with Samuel Alito, Politico noted
The unprecedented leak has likely shaken the Supreme Court to its core. Barricades were being posted around the building shortly after the report was posted online.
The hightly-respected SCOTUSblog, which covers the court in-depth, noted: ‘The document leaked to Politico is almost certainly an authentic draft opinion by J. Alito that reflects what he believes at least 5 members of the Court have voted to support — overruling Roe. But as Alito’s draft, it does not reflect the comments or reactions of other Justices.’
‘It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin,’ SCOTUSblog tweeted.
Other observers called it a crisis for Roberts’ tenure as chief justice.
‘The article represents the greatest crisis that Chief Justice John Roberts has faced in his tenure on the Court,’ wrote legal scholar Jonathan Turley.
Turley also pointed out the leak happened to put pressure on the court to change its ruling before it’s publicly announced.
‘The most likely motivation is obviously to pressure the Court and push the legislation in Congress on a federal abortion law before the midterm elections. It will also likely renew the call for court packing,’ he added.
And Democratic campaign stratgist Brian Fallon tweeted: ‘Is a brave clerk taking this unpredecented step of leaking a draft opinion to warn the country what’s coming in a last-ditch Hail Mary attempt to see if the public response might cause the Court to reconsider?’
Such a ruling would immediately become an issue in the 2022 midterm election where Democrats are struggling to keep control of Congress.
Abortion would also become a major political issue in governors’ races with states being given the right to determine whether or not to allow the procedure.
Both sides of the political aisle immediately jumped on the report.
‘Abortion care is a fundamental human right and we must legislation like it,’ wrote progressive Rep.. Ayanna Pressly on Twitter.
‘Our daughters, sisters, mothers, and grandmothers will not be silenced. The world is about to hear their fury. California will not sit back. We are going to fight like hell,’ wrote Democratic Gov. Gavin Newsom of California.
‘The Supreme Court is preparing to overturn Roe—the most significant and glorious news of our lifetime. Join me in praying to God for the right outcome. Life begins at conception. Let’s protect it,’ tweeted conservative Rep. Marjorie Taylor Greene.