The US Supreme Court looks set to overturn a landmark ruling that effectively legalised abortions across America, handing the power to decide whether or not to permit the procedure back to individual states.
A draft legal opinion, which was leaked to Politico, reveals a majority of the court’s nine judges are in agreement on the issue which would be enough to force a change in the law – though their decision is not final until the ruling is officially published.
In the document, Justice Samuel Alito writes that Roe v Wade – the 1973 Supreme Court ruling which found that excessive state regulation of abortion is unconstitutional – was ‘egregiously wrong from the start’ and ‘must be overruled’.
Alito, who was nominated to the court in 2006 by George W Bush, argues that Roe’s ‘reasoning was exceptionally weak, and the decision has had damaging consequences. Far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.’
But there were few signs that the new ruling will do anything to heal those divisions, with protesters gathering outside the court in Washington DC last night.
If the ruling is overturned, it would give individual states the power to decide on whether to ban abortion. The Guttmacher Institute, a pro-choice research group, has said that 26 states are ‘certain or likely’ to ban abortion if Roe v. Wade is overturned.
As it stands in the US, abortion can take place until about 24 weeks into pregnancy – but the exact period varies between states. For example, Texas bans abortion after about six weeks but Florida has a 15-week abortion ban.
Partisan fighting over the issue began almost immediately, with Democrats vowing to defend abortion rights while Republicans demanded a probe into the leak.
Mr Katyal, the former acting US Solicitor General, said: ‘This is the biggest step back for women in decades. It will have proven consequences. You can have now a flat ban on abortion in any state.’
If the leak proves to be genuine – and the Supreme Court has not denied that it is – it would mark the first time that a draft opinion has ever appeared in public before being officially published, a move expected within the next two months.
A decision in the case had been expected before the court begins its summer recess in late June or early July, so it could be more than a month before the court actually issues a final opinion. If the court does what the draft suggests, the ruling would upend a nearly 50-year-old decision; its advance publication would also disturb an almost unbroken tradition of secrecy at the court.
Key points emerging from the Roe vs Wade legal opinion
If Roe vs Wade is overturned, decision on whether to ban abortion will be decided by states and 26 are likely to do so
Hours after draft opinion emerged, hundreds of pro-choice and anti-abortion activists gathered by US Supreme Court
A ruling to overturn Roe vs Wade would immediately become an issue in the 2022 midterm elections
Both sides of political aisle immediately jumped on the report with Democrats outraged and Republicans praising the news
Republican appointed-Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett all voted to strike down Roe with Samuel Alito, Politico noted
Alito also takes aim in the draft document at another 1992 case – Planned Parenthood v. Casey – which upheld Roe’s findings.
Politico reports that, aside from Alito, four other judges voted in favour of overturning the law: Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, all of whom were nominated by Republican presidents.
A spokesperson for the Supreme Court said: ‘The Court has no comment.’
Politico 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 Alito decision is adopted, it would return the issue of abortions to the states and over half are likely to ban abortion.
Numerous Republican-led states have passed various abortion restrictions in defiance of the Roe precedent in recent years.
Republicans could try to enact a nationwide abortion ban, while Democrats could also seek to protect abortion rights at the national level.
Twenty-six states are certain or likely to ban abortion if Roe v. Wade is overturned, according to the pro-abortion rights think tank the Guttmacher Institute.
Of those, 22 states already have total or near-total bans on the books that are currently blocked by Roe, aside from Texas.
The state’s law banning it after six weeks has already been allowed to go into effect by the Supreme Court due to its unusual civil enforcement structure. Four more states are considered likely to quickly pass bans if Roe is overturned.
Sixteen states and the District of Columbia, meanwhile, have protected access to abortion in state law.
This year, anticipating a decision overturning or gutting Roe, eight conservative states have already moved to restrict abortion rights.
Oklahoma, for example, passed several bills in recent weeks, including one that goes into effect this summer making it a felony to perform an abortion.
South Dakota Republican governor Kristi Noem meanwhile said her state would look to ban abortion.
She said: ‘If this report is true and Roe v. Wade is overturned, I will immediately call for a special session to save lives and guarantee that every unborn child has a right to life in South Dakota.’
Meanwhile, Republican Attorney General Ken Paxton, Texas, responded to the news by encouraging the Court to return the issue to the states.
‘I hope that #SCOTUS returns the question of abortion where it belongs: the States,’ Paxton said on Twitter. ‘This is why I led a 24-state coalition in support of MS’s law banning them after 15 weeks. I’ll [continue] to ensure that TX protects the unborn & pray for the end of abortion across our nation.’
Just hours after the stunning leak of draft opinion emerged, hundreds of pro-choice and anti-abortion activists gathered in front of the US Supreme Court on Monday night.
Squaring off on either side of the white marble building a stone’s throw from the Capitol, the pro-choice and anti-abortion groups railed at each other.
‘Roe v. Wade is going to go,’ anti-abortion protesters taunted, while the pro-choice crowd yelled: ‘My body, my choice.’
The two groups chanted and waved placards in the plaza in front of the steps to the Supreme Court, with barriers and a few uniformed police officers barring access to the colonnaded building.
Abby Korb, a 23-year-old graduate student and congressional aide, said she was ‘in literal shock’ when the news broke and quickly headed to the Supreme Court with a friend.
‘I’m a woman and my rights are being taken away every single day,’ she said.
Like many others at the spontaneous demonstration, Korb, originally from Wisconsin, is now calling for legislation at the federal level to protect access to abortion.
‘We need access to safe abortion because making it illegal isn’t going to stop it, it’s just going to make it more dangerous,’ she said.
The growing crowd took turns to hurl expletives at Supreme Court Justice Samuel Alito, who reportedly wrote the opinion, and called on Democratic Party leaders to ‘do something’.
Madeline Hren, a 25-year-old from North Carolina, said she was very angry. ‘I called everyone I knew to be very angry,’ she said, holding a small sign with a drawing of a bloody coat hanger that said ‘We will not go back.’
‘I’m really upset about it… I didn’t cry. I’m mostly just mad,’ said Hren, who works for the UN Foundation. She now fears that an abortion ban will extend to her native North Carolina.
For opponents of the right to abortion, however, it was time to celebrate.
‘You don’t care if people die,’ they sang at the pro-choice crowd.
‘I hope they overturn it,’ said Claire Rowan, a 55-year-old mother of seven children, some of whom accompanied her to the demonstration.
Rowan said she hopes people will now be ‘asking God for forgiveness so that the nation can heal.’
The unprecedented leak sent shock waves through the United States, not least because the court prides itself on keeping its internal deliberations secret and leaks are extremely uncommon.
The news stunned abortion providers.
On Monday night, Andrea Gallegos, executive administrator at Tulsa Women’s Clinic in Oklahoma, had just finished calling some 25 patients scheduled for abortions on Tuesday to tell them that their appointments would need to be canceled because of a soon to be enacted Oklahoma law modeled on a highly restrictive Texas abortion ban.
‘I can’t say that I’m surprised,’ she said.
‘Now all these other conservative states like Oklahoma are passing the exact same legislation that Texas did, I have to say I became less optimistic and way more scared for what the future of Roe looks like.’
The anti-abortion group the Susan B. Anthony List welcomed the news.
‘If Roe is indeed overturned, our job will be to build consensus for the strongest protections possible for unborn children and women in every legislature,’ said its president, Marjorie Dannenfelser, in a statement.
Politico reports that four of the five remaining Republican-appointed justices voted with Alito in December, after hearing oral arguments on a Mississippi abortion case. And that line-up remains unchanged as of this week.
Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett all voted to strike down Roe.
Democrat-appointed justices Stephen Breyer, Sonia Sotomayor and Elena Kagan are working on dissents.
It is not clear how Chief Justice John Roberts, nominated by W Bush, voted – though the fact that he did not pen the majority opinion could suggest he voted against. Sources told CNN that he would’ve dissented with the liberals on Alito’s opinion draft.
But if the justices stand firm, it would not matter how Roberts votes as five back the Alito draft opinion.
Draft opinions can change and the ruling will not be final until it is published.
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.
Politico said only that it received ‘a copy of the draft opinion from a person familiar with the court´s proceedings in the Mississippi case along with other details supporting the authenticity of the document.’
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.
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. Posts to social media showed people gathering at the metal fencing, holding candles in vigil.
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 with Democrats outraged and Republicans praising the news.
‘Abortion care is a fundamental human right and we must legislation like it,’ wrote progressive Rep.. Ayanna Pressly of Massachusetts on Twitter.
‘This is bulls***,’ wrote Democratic Senator Tina Smith of Minnesota 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 of Georgia.
Feminist attorney Gloria Allred wrote: ‘If the leaked draft opinion of the U.S. Supreme Court overturning Roe v. Wade becomes the final opinion of the U.S. Supreme Court, then countless women and girls will die or be maimed from illegal, unsafe abortions. Urge SCOTUS to support Roe v. Wade and stop endangering women.’
Republican Senator Marco Rubio of Florida claimed the leak was done to influence the ruling.
‘The next time you hear the far left preaching about how they are fighting to preserve our Republic’s institutions & norms remember how they leaked a Supreme Court opinion in an attempt to intimidate the justices on abortion,’ he wrote on Twitter.
And Republican Senator Tom Cotton of Arkansas called for an investigation of the leak.
‘The Supreme Court & the DOJ must get to the bottom of this leak immediately using every investigative tool necessary,’ he tweeted.
The Democratic-controlled House of Representatives, in September, passed legislation that would codify abortion rights protections amid threats to Roe v. Wade.
That bill has been stalled in the 50-50 Senate, where it needs at least 60 votes to move forward. And it may need more than that as not all Democratic senators are guaranteed to vote for such a bill, particularly moderate Democratic Senator Joe Manchin of West Virginia.
Progressive Senator Bernie Sanders said that 60-vote thresh hold, often called the filibuster, must be removed to legalize abortion.
‘Congress must pass legislation that codifies Roe v. Wade as the law of the land in this country NOW. And if there aren’t 60 votes in the Senate to do it, and there are not, we must end the filibuster to pass it with 50 votes,’ he tweeted on Monday night.