In a massive but not entirely unexpected blow to abortion rights, the U.S. Supreme Court intends to strike down the landmark Roe v. Wade decision, according to a report late Monday by Politico, which obtained a draft majority opinion of the pending ruling.
The high court is expected to announce their decision within the next two months, ruling on a case brought by Mississippi that seeks to ban most abortions after 15 weeks of pregnancy.
“Roe was egregiously wrong from the start,” Justice Samuel Alito wrote in a draft of the majority opinion obtained by Politico and posted online. “We hold that Roe and Casey must be overruled,” Alito continued, citing also a 1992 case that confirmed the 1973 Roe decision.
Striking down Roe v. Wade would end federal protection of abortion rights and allow each state to decide on the legality of abortion, a massive political change from the past nearly 50 years. After the report was published, barricades were put up around the Supreme Court building, in preparation for likely protests. A small crowd gathered in front of the building Monday night.
Politico noted that draft decisions are not final or binding, and justices could still change their minds before making their ruling public. Citing a source familiar with the deliberations, Politico reported Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett support overturning Roe, with Stephen Breyer, Sonia Sotomayor and Elena Kagan dissenting and Chief Justice John Roberts’ stance unclear. CNN on Monday night reported Roberts is willing to uphold the Mississippi law in question but does not favor a complete overturning of Roe.
The disclosure of such a draft decision while a case is still pending is unprecedented in the Supreme Court’s history, Politico said. It said it obtained the draft from someone familiar with the court’s proceedings along with “other details” supporting its authenticity.
The nature of the leak led some online to question its validity. In an editor’s note to staff, Politico Executive Editor Dafna Linzer said: “After an extensive review process, we are confident of the authenticity of the draft … We take our responsibilities to our readers and our publication with the greatest seriousness.”
A number of states, including Texas and Oklahoma, have recently passed restrictive abortion laws, and 12 states have so-called “trigger” laws that would automatically ban nearly all abortions if Roe were to be overturned, while another four states have pre-Roe bans in place that would be restored if that ruling was struck.
California, among other states, has vowed to remain an abortion “sanctuary,” with California Gov. Gavin Newsom tweeting Monday night that “California will not sit back. We are going to fight like hell.”
Other Democrats were quick to condemn the apparent ruling.
“Not surprising. But still outrageous,” former senator and presidential candidate Hillary Clinton tweeted Monday night. “This decision is a direct assault on the dignity, rights, & lives of women, not to mention decades of settled law. It will kill and subjugate women even as a vast majority of Americans think abortion should be legal. What an utter disgrace.”
Sen. Elizabeth Warren of Massachusetts tweeted: “An extremist Supreme Court is poised to overturn #RoeVWade and impose its far-right, unpopular views on the entire country. It’s time for the millions who support the Constitution and abortion rights to stand up and make their voices heard. We’re not going back—not ever.”
A CNN poll conducted in January found a majority of Americans — 69% — opposed overturning Roe, including 86% of Democrats.