A protester holds a sign outside the U.S. Supreme Court after the leak of a draft majority opinion written by Justice Samuel Alito preparing for a majority of the court to overturn the landmark Roe v. Wade abortion rights decision later this year, in Washington, U.S., May 2, 2022.
Jonathan Ernst | Reuters
The Supreme Court is poised to overturn the constitutionally protected right to abortion ensured by the nearly 50-year-old Roe v. Wade ruling, according to a leaked initial draft of the new opinion obtained by Politico.
The draft was written by Justice Samuel Alito, with the concurrence of at least four other conservative members of the Supreme Court.
“We hold that Roe and Casey must be overruled,” Alito wrote in the 98-page draft decision on Mississippi’s strict new abortion law, according to Politico’s report published Monday night.
“The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions.”
“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” the justice wrote in the draft published by the site, and whose authenticity CNBC has been unable to confirm independently.
“Roe was egregiously wrong from the start.”
Currently, the Supreme Court’s decisions in Roe v. Wade and in a 1992 case, Planned Parenthood v. Casey, bar states from passing laws that restrict abortions before the point of fetal viability — around 24 weeks of gestation, and require that laws regulating abortion not pose an “undue burden.”
But if the conclusions of Alito’s draft opinion are officially released by the court before its term ends in about two months, individual states would be able to restrict when and how women could terminate their pregnancies, without federal courts having a say over the legality of those rules.
While any state could allow abortions with no or few restrictions, those led by conservative Republicans in the South and Midwest are likely to impose much tighter restrictions on abortion than ones currently in place.
The abortion rights-supporting Guttmacher Institute in October said that if the Supreme Court weakened or overturned Roe v. Wade, 26 states are certain or likely to ban abortion.
Oklahoma’s House on Thursday passed a bill set to be signed by Gov. Kevin Stitt that would ban most abortions after about six weeks of pregnancy.
Associate Justice Samuel Alito participates in the swearing-in ceremony for Defense Secreaty Mark Esper in the Oval Office at the White House in Washington, DC, on July 23, 2019.
Nicholas Kamm | AFP | Getty Images
Politico said Alito’s draft opinion had been circulated among the justices in February, and that court’s three liberal members, Stephen Breyer, Elena Kagan and Sonia Sotomayor, are writing dissents to it.
It is unclear if there have been subsequent changes to the draft by Alito since it first circulated.
The Supreme Court ruling anticipated in Alito’s draft also would be a monumental victory for religious conservatives, who for decades have tried to get the Supreme Court to undo the decisions making abortion a constitutional right.
Supreme Court draft opinions are not set in stone, and justices sometimes change their positions on a case after a copy of a draft is circulated among them.
Politico noted that “no draft decision in the modern history of the court has been disclosed publicly while a case was still pending.”
“The unprecedented revelation is bound to intensify the debate over what was already the most controversial case on the docket this term,” Politico said.
The Supreme Court news site SCOTUSblog tweeted: “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.”
Politico’s executive editor, Dafna Linzer, wrote in an editor’s note that “after an extensive review process, we are confident of the authenticity of the draft.”
“This unprecedented view into the justices’ deliberations is plainly news of great public interest,” she wrote.
A Supreme Court spokeswoman declined to comment to CNBC on the Politico report.
On the heels of the article, Republican lawmakers, whose party has pushed for overturning Roe v. Wade, condemned the leaking of the draft opinion, while Democrats blasted the contents of the ruling, which would undo a cornerstone of their own party’s platform.
Republicans in their statements assumed, without evidence, that the leaker was someone opposed to 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,” tweeted Sen. Marco Rubio, R-Fla.
Senate Majority Leader Chuck Schumer, D-N.Y., and House Speaker Nancy Pelosi, D-Calif., in a joint statement said, “If the report is accurate, the Supreme Court is poised to inflict the greatest restriction of rights in the past fifty years— not just on women but on all Americans.
“The Republican-appointed Justices’ reported votes to overturn Roe v. Wade would go down as an abomination, one of the worst and most damaging decisions in modern history,” Schumer and Pelosi said.
Alexis McGill Johnson, CEO of Planned Parenthood Federation of America, said in a statement reacting to the report: “Let’s be clear: Abortion is legal. It is still your right.”
“This leaked opinion is horrifying and unprecedented, and it confirms our worst fears: that the Supreme Court is prepared to end the constitutional right to abortion by overturning Roe v. Wade,” McGill Johnson said.
Alito’s draft ruling as reported came in Dobbs v. Jackson Women’s Health Organization, a case centering on a Mississippi law that would ban almost all abortions after 15 weeks of pregnancy.
Lower federal courts had blocked the law on the grounds that it violates the protections established by the Roe and Casey decisions.
During oral arguments at the Supreme Court for the Mississippi case in December, the three liberal justices expressed grave fears about the consequences of the court reversing decades of precedent on perhaps the most divisive issue in American politics, at a time when the court has become a flashpoint for controversy and faced all-time low public approval ratings.
“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” Sotomayor asked. “I don’t see how it is possible.”
But Alito, in the draft opinion as reported, wrote, “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment.”
“Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage,” Alito wrote.
“But,” he reportedly continued, “abortion is fundamentally different, as both Roe and Casey acknowledged because it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘unborn human being.'”
Alito wrote that the tradition known as stare decisis, or deference toward court precedents such as Roe v. Wade, “does not compel unending adherence to Roe’s abuse of judicial authority.”
“Roe was egregiously wrong from the start,” Alito went on in the draft.
“Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issues, Roe and Casey have enflamed debate and deepened division.”
“Abortion presents a profound moral question,” he wrote.
“The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”
Alito’s draft anticipates the backlash to overturning Roe and Casey even as he dismisses the idea of allowing that to affect how he and the other justices in the majority vote on the issue.
“We cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work,” Alito wrote, according to Politico’s report.
“We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision.”