Consequences of Supreme Court draft opinion that would overturn Roe v. Wade published by Politico
Updated 11:45 AM ET, Tue May 3, 2022
Post by Ben Abrams x The Big Magazine (NEWS)
In a stunning breach of Supreme Court confidentiality and secrecy, Politico has obtained what it calls a draft of a majority opinion written by Justice Samuel Alito that would strike down Roe v. Wade.
The draft was circulated in early February, according to Politico. The final opinion has not been released and votes and language can change before opinions are formally released. The opinion in this case is not expected to be published until late June.
The court confirmed the authenticity of the document Tuesday. It also stressed it was not the final decision.
According to the draft, the court would overturn Roe v. Wade's holding of a federal constitutional right to an abortion. The opinion would be the most consequential abortion decision in decades and transform the landscape of women's reproductive health in America.
It appears that five justices would be voting to overturn Roe. Chief Justice John Roberts did not want to completely overturn Roe v. Wade, meaning he would have dissented from part of Alito's draft opinion, sources tell CNN, likely with the court's three liberals.
That would mean that the five conservative justices that would make up the majority overturning Roe are Alito and Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
Roberts is willing, however, to uphold the Mississippi law that would ban abortion at 15 weeks of pregnancy, CNN has learned. Under current law, government cannot interfere with a women's choice to terminate a pregnancy before about 23 weeks, when a fetus could live outside the womb.
In a statement on Tuesday, Roberts said he has ordered an investigation.
"This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here," Roberts said. I have directed the Marshal of the Court to launch an investigation into the source of the leak."
"To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed," Roberts said. "The work of the Court will not be affected in any way. We at the Court are blessed to have a workforce -- permanent employees and law clerks alike -- intensely loyal to the institution and dedicated to the rule of law. Court employees have an exemplary and important tradition of respecting the confidentiality of the judicial process and upholding the trust of the Court."
After the draft was published, a crowd gathered outside the Supreme Court building Monday evening, as people came together to console one another and question what to do next.
At one point, the crowd began to chant, "Hey, hey, ho, ho, Samuel Alito's gotta go." "We will not go back." "Abortion rights are under attack, what do we do, stand up fight back." "Pack the courts."
Politico's publishing of the draft is unprecedented by the high court's standards of secrecy. The inner deliberations among the justices while opinions are being drafted and votes are being settled are among the most closely held details in Washington.
"This news is simply stunning for the Supreme Court as an institution," said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law. "Not only is the result it portends -- the overruling of Roe and Casey -- a shockwave to our constitutional politics, but we have never seen a leak remotely like this from inside the Court, where we're not just hearing what the result is going to be, but we're seeing the draft majority opinion in advance. It's hard to believe that the former doesn't help to explain the latter, but it's an earthquake in both respects."
The case in question is Dobbs v. Jackson. It concerns a challenge to Mississippi's 15-week ban on abortion and oral arguments were heard on December 1. The release of a final opinion in the case is expected later this Spring or early summer.
In the draft opinion, Alito writes that Roe "must be overruled."
"The Constitution makes no reference to abortion and no such right is implicitly protected by any constitutional provision," Alito wrote. He said that Roe was "egregiously wrong from the start" and that its reasoning was "exceptionally weak, and the decision has had damaging consequences."
He added, "It is time to heed the Constitution and return the issue of abortion to the people's representatives."
"That is what the Constitution and the rule of law demand," he said, according to the draft.
Already nearly half of the states have or will pass laws that ban abortion, while others have enacted strict measures regulating the procedure.
In the opinion, Alito also addresses the fact that Roe has been on the books for some 50 years. Although the court is loath to overturn precedent, Alito says it must do so. He said that the notion of "stare decisis" does not "compel unending adherence to Roe's abuse of judicial authority."
He said that instead of "bringing about a national settlement of the abortion issue" Roe and a follow-on decision "have enflamed debate and deepened division."
"The inescapable conclusion," Alito wrote, according to the draft, "is that a right to an abortion is not deeply rooted in the Nation's history and traditions."
He also said the decision was on a "collision course" with the Constitution "from the day it was decided."
Alito also pushed back on the notion that if the court were to overturn Roe it could lead the court to overturn other cases like Obergefell v. Hodges, that upheld the right to same-sex marriage. He said that what "sharply distinguishes" Roe from other cases is that "abortion destroys" potential life.
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