Leaked draft opinion suggests Supreme Court may overturn Roe v. Wade

Washington — The Supreme Court appears ready to overturn its landmark decisions establishing the right to an abortion, according to a draft opinion obtained and published by Politico, a decision that — if finalized — would dismantle 50 years of precedent and pave the way for states to severely curtail abortion rights in the United States.

The leak of a draft opinion from the Supreme Court is breathtaking and unprecedented in modern times, and has already sent shockwaves through Washington and the nation. 

In a statement Tuesday morning, the court confirmed the document was authentic. Chief Justice John Roberts denounced the leak as a “betrayal” and “a singular and egregious betrayal of trust” that would be fully investigated. 

Late Monday, hundreds of protesters gathered outside the court after Politico published the report suggesting the conservative majority is preparing to fully overturn Roe v. Wade, the 1973 decision establishing the right to an abortion. 

Democrats and Republicans alike issued statements reacting to the reported draft and the implications it would have if such a ruling was ultimately handed down. Planned Parenthood tweeted, “Let’s be clear: This is a draft opinion. It’s outrageous, it’s unprecedented, but it is not final. Abortion is your right — and it is STILL LEGAL.”

The draft published by Politico indicates it was written by Justice Samuel Alito and circulated on February 10. It did not say which other justices joined in the opinion, but Politico noted that a person familiar with the court’s deliberations said four other conservative justices, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, voted with Alito to strike down Roe during closed-door discussions after oral arguments and have not changed their positions. It’s unclear whether Roberts will join the conservative majority, according to Politico.

The justices could change their votes in the days or weeks leading up to the decision’s release. The Supreme Court’s opinion in the case, known as Dobbs v. Jackson Women’s Health Organization, involves a Mississippi law banning abortions after 15 weeks and is expected to be handed down before the justices conclude their term by the end of June or early July. 

Politico said 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.”

Roberts is calling for a full-scale investigation by the marshal of the court into the leak of the draft opinion to determine who was the source.  

The justices heard oral arguments in the blockbuster dispute involving the Mississippi law in December, and at the end of the session, a majority of the court appeared poised to allow the state’s measure to stand. It was less clear, though, whether five justices would vote to overturn Roe and Planned Parenthood v. Casey, the 1992 case that reaffirmed Roe’s core holding that states cannot outlaw abortion before fetal viability, generally considered to be between 22 and 24 weeks into a pregnancy. 

But according to the draft opinion leaked to and published by Politico, Alito wrote that Roe was “egregiously wrong from the start” and its reasoning “exceptionally weak.”

“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” Alito wrote, according to Politico. 

Alito, appointed to the Supreme Court by President George W. Bush, concluded: “Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each state from regulating or prohibiting abortion. Roe and Case arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”

The document notes the decision is a “1st Draft,” and Alito’s opinion runs 67 pages and is accompanied by a 31-page appendix containing various state statutes criminalizing abortion.

If the Supreme Court overrules Roe and Casey, as the reported draft opinion suggests, it would mark a long-awaited victory for anti-abortion advocates who for decades have called on the high court to reconsider its abortion precedents.

The appointment of three conservative justices by former President Donald Trump — Gorsuch, Kavanaugh and Barrett — widened the court’s conservative majority to 6-3, and Mississippi officials then called for the Supreme Court to use their legal battle as the vehicle to overturn Roe and Casey.

The Guttmacher Institute, an organization that supports abortion rights, estimated that 26 states are either certain or likely to ban abortion if the Supreme Court overturns or dismantles Roe.  Some already have laws in place that would do so if Roe was struck down, and governors in Oklahoma and Florida each signed new abortion restrictions into law last month.

A CBS News poll from November indicated that a majority of Americans supported leaving Roe in place. According to the November poll, if Roe is overturned and the matter is left up to the states, a majority would want abortion in their own state to be legal in all or most cases: more than six in 10 say so. Only 14% would want their state to make it illegal in all cases.

The draft opinion, as reported by Politico, prompted outrage from congressional Democrats.

“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,” House Speaker Nancy Pelosi and Senate Majority Leader Chuck Schumer said in a blistering joint statement. “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.”

Pelosi and Schumer accused the conservative justices of having “lied to the U.S. Senate” and “ripped up the U.S. Constitution.” Such a ruling, they said, would strip millions of women of their “bodily autonomy and the constitutional rights they’ve relied on for half a century.”

Reaction from Republicans, meanwhile, focused on criticizing the leak as damaging to the Supreme Court as an institution. 

In a statement Tuesday morning, House Republican Leader Kevin McCarthy, Whip Steve Scalise, and Conference Chair Elise Stefanik said the leak was a “clearly coordinated campaign to intimidate and obstruct the Justices of the United States Supreme Court, and its independence in our political system, from upholding the Constitution must be immediately investigated by the court.” They added, “House Republicans are committed to upholding the sanctity of life.” 

Several GOP Senators commented on the ruling Monday night. Sen. Marco Rubio of Florida tweeted, “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.” 

Sen. Tom Cotton of Arkansas tweeted that the Supreme Court and Justice Department should use “every investigative tool necessary” to get to the bottom of the leak, but added that he prays “the court follows the Constitution and allows the state to once again protect unborn life.”

Jan Crawford contributed reporting.