WASHINGTON (AP) — A draft opinion suggests the U.S. Supreme Court may be on the verge of overturning the landmark 1973 Roe v. Wade case that legalized abortion nationwide, according to a report. Politico.
WASHINGTON (AP) — A draft opinion suggests the U.S. Supreme Court may be on the verge of overturning the landmark 1973 Roe v. Wade case that legalized abortion nationwide, according to a report. from Politico.
A decision to overturn Roe would lead to abortion bans in about half the states and could have huge ramifications for this year’s election. But it’s unclear whether the draft represents the court’s final say on the matter – opinions often change in big and small ways in the drafting process.
President Joe Biden said Tuesday that “fundamental fairness and the stability of our law demand” that the court not overturn Roe. While emphasizing that he could not speak to the authenticity of the project, Biden said his administration was preparing for all eventualities for when the court would rule as a last resort and that a decision to overturn Roe would raise the stakes for voters in November’s midterm elections.
“If the court overturns Roe, it will be up to our nation’s elected officials at all levels of government to protect a woman’s right to choose,” Biden said. “And it will be up to voters to elect pro-choice leaders in November. At the federal level, we will need more pro-choice senators and a pro-choice majority in the House to pass legislation codifying Roe, which I will strive to pass and sign.
Regardless of the outcome, Monday night’s Politico report represented an exceedingly rare breach of the court’s secret deliberative process and on a matter of momentous importance.
“Roe was blatantly wrong from the start,” the draft notice reads. It was signed by Judge Samuel Alito, a member of the court’s 6-3 conservative majority who was appointed by former President George W. Bush.
The document has been called the “1st draft” of the “court’s opinion” in a case challenging Mississippi’s 15-week abortion ban, a case known as Dobbs v. Jackson Women’s Health Organization.
The court is expected to rule on the case before its term ends in late June or early July.
The draft opinion in effect states that there is no constitutional right to abortion services and would allow individual states to more strongly regulate or outright ban the procedure.
“We believe Roe and Casey should be overturned,” he said, referring to Planned Parenthood v. Casey’s 1992 which upheld Roe’s conclusion of a constitutional right to abortion services but allowed states to impose certain constraints on the practice. “It is time to respect the Constitution and to return the question of abortion to the elected representatives of the people.
A Supreme Court spokeswoman said the court had no comment and the Associated Press could not immediately confirm the authenticity of the February draft published by Politico.
Politico only said it had received “a copy of the draft notice from a person familiar with the court proceedings in the Mississippi case along with other details supporting the authenticity of the document.”
The draft notice strongly suggests that when the judges met privately shortly after arguments in the case on December 1, at least five voted to overrule Roe and Casey, and Alito was given the task. to write the majority opinion of the tribunal.
Votes and opinions in a case are not final until a decision is announced or, in a change brought about by the coronavirus pandemic, posted on the court’s website.
The report comes amid a legislative push to restrict abortion in several Republican-led states – Oklahoma being the most recent – even before the court issued its ruling. Critics of the measures have said low-income and minority women will disproportionately bear the burden of the new restrictions.
The leak sparked the intense political repercussions the High Court’s final decision was expected to have in the year of the midterm elections. Already, politicians on both sides of the aisle were seizing on the report to raise funds and energize their supporters on either side of the burning issue.
An AP-NORC poll in December found that Democrats increasingly see protecting abortion rights as a top priority for government.
Other polls show relatively few Americans want to see Roe knocked down. In 2020, AP VoteCast found that 69% of voters in the presidential election said the Supreme Court should leave the Roe v. Wade decision as is; only 29% said the court should overturn the decision. In general, AP-NORC polls reveal that a majority of the public supports the legality of abortion in most or all cases.
Yet when asked about abortion policy in general, Americans have nuanced attitudes on the issue, and many do not believe that abortion should be possible after the first trimester or that women should be able to obtain a legal abortion for any reason.
Alito, in the draft, said the court could not predict how the public might react and should not try. “We cannot allow our decisions to be affected by outside influences such as concern about public reaction to our work,” Alito wrote in the draft notice, according to Politico.
People on both sides of the issue quickly rallied outside the Supreme Court waving signs and singing on a balmy spring night after the Politico report was released.
The response was swift from elected officials in Congress and across the country.
In a joint statement by the two leading Democrats in Congress, House Speaker Nancy Pelosi and Senate Majority Leader Chuck Schumer said, “If the report is accurate, the Supreme Court is poised to inflict the most great restriction of rights over the past fifty years – not just on women but on all Americans.
New York Governor Kathy Hochul, also a Democrat, said people seeking abortions could travel to New York. “For anyone in need of access to care, our state will welcome you with open arms. Abortion will always be safe and accessible in New York,” Hochul said in a tweet.
Mississippi Attorney General Lynn Fitch said in a statement, “We will let the Supreme Court speak for itself and await the court’s official opinion.” But local officials praised the project.
“It puts the decision-making back in the hands of the states, which it always should have been,” said Mississippi State Rep. Becky Currie.
Congress could also act, though a bill enshrining Roe’s protections into federal law is stalled in the Senate after passing the House last year with only Democratic votes.
During Supreme Court oral arguments in December, the six conservative justices indicated they would abide by Mississippi law, and five asked questions suggesting it was possible to overrule Roe and Casey.
Only Chief Justice John Roberts seemed willing to take the slightest step in upholding the 15-week ban, although that would also be a significant weakening of abortion rights.
So far, the Court has allowed states to regulate but not ban abortion before the point of viability, around 24 weeks.
The court’s three liberal justices likely seemed to disagree.
It is impossible to know what efforts are being made behind the scenes to influence a judge’s vote. If Roberts is inclined to allow Roe to survive, he only has to choose another Conservative vote to rob the court of a majority to overturn the abortion landmark.
Twenty-six states are certain or likely to ban abortion if Roe v. Wade is canceled, according to abortion rights think tank, the Guttmacher Institute. Of these, 22 states already have total or near-total bans on books currently blocked by Roe, with the exception of Texas. The state law banning it after six weeks has already been allowed to go into effect by the Supreme Court because of its unusual civil enforcement structure. Four other states are considered likely to quickly enact bans if Roe is overturned.
Meanwhile, sixteen states and the District of Columbia have protected access to abortion in state law.
This year, anticipating a ruling overturning or eviscerating Roe, eight conservative states have already taken steps to restrict abortion rights. Oklahoma, for example, has passed several bills in recent weeks, including one that will take effect this summer, making performing an abortion a crime. Like many anti-abortion bills passed this year in GOP-led states, it makes no exceptions for rape or incest, only to save the life of the mother.
Eight Democratic-leaning states have protected or expanded access to the procedure, including California, which has passed legislation making the procedure less expensive and is considering other bills to make itself an “abortion sanctuary” if Roe is cancelled.
The project seemed legitimate to some followers of the court. Veteran Supreme Court lawyer Neal Katyal, who worked as Justice Stephen Breyer’s clerk and was therefore able to see drafts, wrote on Twitter: “There are a lot of signals that the opinion is legit. The length and depth of the analysis would be very difficult to simulate. He says it’s written by Alito and definitely sounds like him.
Associated Press writers Jessica Gresko in Washington and Lindsay Whitehurst in Salt Lake City contributed to this report.
Mark Sherman and Zeke Miller, Associated Press