Supreme Court Leak Shows Justices Preparing To Overturn Roe, Politico Reports

The Supreme Court is poised to strike down Roe v. Wade, the landmark decision codifying Americans’ access to abortion, according to a draft majority opinion leaked and published by Politico on Monday.

The draft opinion, authored by Justice Samuel Alito, excoriates the Roe decision and a subsequent ruling by the court in the 1992 case Planned Parenthood v. Casey.

“Roe was egregiously wrong from the start,” Alito writes in the document, according to Politico. “We hold that Roe and Casey must be overruled … It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

The justice went on to say the issue of abortion had remained a divisive political issue for decades, adding that the court could “only do our job, which is to interpret the law … and decide this case accordingly.”

“Roe certainly did not succeed in ending division on the issue of abortion,” he wrote. “On the contrary, Roe ‘inflamed’ a national issue that has remained bitterly divisive for the past half-century. …This Court’s inability to end debate on the issue should not have been surprising.”

The court’s official ruling on the matter will only be final when it is published, and justices can change their votes up until that point, meaning nothing is decided.

Patricia McCabe, the court’s public information officer, said the Supreme Court had “no comment” on the leak.

The decision to overturn Roe would eradicate abortion access in much of the country. More than 20 states have laws or constitutional amendments in place designed to ban abortion as quickly as possible in the event that Roe v. Wade is overturned.

It is extremely rare for draft decisions to leak from the Supreme Court before they’re published.

Politico’s editors emailed staff shortly after the piece was published saying it conducted an “extensive review process” that led them to believe the draft was authentic.

“This unprecedented view into the justices’ deliberations is plainly news of great public interest,” Executive Editor Dafna Linzer and Editor-in-Chief Matt Kaminski wrote. “Our obligation, as protected by the First Amendment, is to report the news and inform our audience.”

SCOTUSblog, which closely monitors the Supreme Court, said the draft document was “almost certainly authentic” but doesn’t reflect the comments or thoughts of other justices on the bench. The site added that the leak would cause an “earthquake” inside the court.

“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,” the site tweeted. “This leak is the gravest, most unforgivable sin.”

Dobbs v. Jackson Women’s Health Organization, the case currently threatening Roe, centers on a 2018 Mississippi law that bans abortion at 15 weeks. The law — debated in front of the Supreme Court in December — directly contradicts Roe, which established a constitutional right to access abortion until a fetus becomes viable at around 24 weeks. The Mississippi law cuts the gestational limit almost in half.

There are several possible outcomes in the case. The Supreme Court could strike down the law, which means Roe would remain intact. But advocates and experts agreed after oral arguments in December that the court’s conservative majority signaled it would likely uphold the law by either banning abortion outright or tinkering with the viability line.

Either of those options would effectively overturn Roe — setting off a nationwide battle in which some states outlaw abortion and others would go to great lengths to protect it.

The report prompted immediate fury from abortion rights groups, some of whom said the court had time to change tack after the leak.

“We all have shit drafts. They have a chance to fix it,” Renee Bracey Sherman, the founder and executive director of We Testify, an abortion storytelling organization, told HuffPost.