WASHINGTON, D.C., USA — A draft opinion circulated among Supreme Court justices suggests that earlier this year a majority of them had thrown support behind overturning the 1973 case Roe v. Wade that legalized abortion nationwide, according to a report published Monday night in Politico. It’s unclear if the draft represents the court’s final word on the matter.
The Associated Press could not immediately confirm the authenticity of the draft Politico posted, which if verified marks a shocking revelation of the high court’s secretive deliberation process, particularly before a case is formally decided.
The news outlet published what was labeled as a “1st Draft” of the “Opinion of the Court” in a case challenging Mississippi's ban on abortion after 15 weeks, a case known as Dobbs v. Jackson Women’s Health Organization.
The Supreme Court has yet to issue a ruling in the case, and opinions — and even justices’ votes — have been known to change during the drafting process. The court is expected to rule on the case before its term is up in late June or early July.
The draft is signed by Justice Samuel Alito, a member of the court's 6-3 conservative majority, who was appointed by former President George W. Bush.
“Roe was egregiously wrong from the start,” the draft opinion states.
“We hold that Roe and Casey must be overruled,” it adds, referencing the 1992 case Planned Parenthood v. Casey that affirmed Roe’s finding of a Constitutional right to abortion services but allowed states to place some constraints on the practice. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
Chief Justice John Roberts on Tuesday confirmed the authenticity of the leaked draft opinion. He ordered an investigation into what he called an “egregious breach of trust.”
In the high court's first public comment since the draft was published late Tuesday, Roberts said “Although the document described in yesterday’s reports is authentic, it does not represent a decision by the Court or the final position of any member on the issues in the case.”
In a statement, he said, “To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed.”
He added: “I have directed the Marshal of the Court to launch an investigation into the source of the leak.”
The draft opinion in effect states there is no Constitutional right to abortion services and would allow individual states to more heavily regulate or outright ban the procedure.
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.”
President Joe Biden said Tuesday a decision overturning Roe would raise the stakes for voters in November's heated midterm elections.
“If the Court does overturn Roe, it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose,” Biden said. “And it will fall on voters to elect pro-choice officials this November. At the federal level, we will need more pro-choice Senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law.”
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