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Supreme Court is ready to strike down Roe v. Wade, leaked draft shows

A leaked draft opinion on May 2 shows that the Supreme Court is poised to overturn federal abortion protections. Here's what would happen. (Video: Joshua Carroll/The Washington Post)
12 min

A published draft of a Supreme Court opinion that would overturn the right to abortion established in Roe v. Wade has clouded the future of reproductive rights, disrupted the nation’s political landscape and undermined the high court’s image as a place of private deliberations free from the dramatic leaks common in the political branches of government.

Monday night’s disclosure by Politico of the draft opinion that it said was circulated by Justice Samuel A. Alito Jr. represents an extreme breach of modern Supreme Court protocol. The report said that Alito, along with Justice Clarence Thomas and all of three of President Donald Trump’s nominees to the court — Justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — had already voted to overturn the precedent, a conclusion that seemed a possibility in December when the court considered a Mississippi law that would ban abortions after 15 weeks.

The fallout has included outrage from liberal politicians, a call for an investigation into the leak and a demand by some on the political right that the Supreme Court forgo protocol and issue a decision immediately — before the justices’ opinions could change.

That would be an extreme move. Alito’s opinion, which Politico said was shared among the justices in February, was labeled a first draft and there was no indication that other members of the court who might have initially voted to overturn Roe agreed with the opinion’s reasoning. There is ample history of justices wanting revisions after reading the reasoning of a draft opinion, and sometimes even reversing their initial votes.

President Biden weighed in Tuesday morning. While stressing the leaked document is preliminary and has not been independently authenticated, Biden said, “I believe that a woman’s right to choose is fundamental, Roe has been the law of the land for almost fifty years, and basic fairness and the stability of our law demand that it not be overturned.”

As other Democratic politicians have done, he also turned it into a pitch for the fall elections.

“If the Court does overturn Roe, it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose. And it will fall on voters to elect pro-choice officials this November,” Biden said in the statement. “At the federal level, we will need more pro-choice Senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law.”

And Sen. Susan Collins (R-Maine), instrumental in the confirmation of Trump’s nominees, expressed alarm at the report.

“If this leaked draft opinion is the final decision and this reporting is accurate, it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office,” Collins said in a statement. “Obviously, we won’t know each Justice’s decision and reasoning until the Supreme Court officially announces its opinion in this case.”

The remarks were typical of the tumult generated by Politico’s report, which drew crowds outside the Supreme Court on Monday night and launched a series of fiery statements.

“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,” read a joint statement from Senate Majority Leader Charles E. Schumer (D-N.Y.) and House Speaker Nancy Pelosi (D-Calif.). “ … Several of these conservative Justices, who are in no way accountable to the American people, have lied to the U.S. Senate, ripped up the Constitution and defiled both precedent and the Supreme Court’s reputation — all at the expense of tens of millions of women who could soon be stripped of their bodily autonomy and the constitutional rights they’ve relied on for half a century.”

From December: Supreme Court seems inclined to uphold Mississippi abortion law that would undermine Roe v. Wade

Antiabortion activists, meanwhile, viewed the draft with guarded optimism. “You know the old saying, ‘It ain’t over till it’s over.’ But we are full of hope that someday soon the preborn of the United States will be a little bit safer,” said Cathy Nix, executive director of the San Antonio Coalition for Life.

It could be months before it is clear whether the document will serve as the basis for the court’s decision or if it was just an opening round of negotiations. Drafts of opinions are circulated to try to convince other justices and to serve as a document they can endorse. Language can be strengthened or toned down.

In that manner, the leaked document — Politico said it was circulated in February — could be Alito’s best effort to illustrate how the court could explain its decision to the public should a majority believe the time has come to overturn Roe.

And the leak could be seen as a calculation to spur the court to move in another direction.

But there was no reason to believe that the detailed document Politico said it obtained was illegitimate.

“The Court has no comment,” Supreme Court public information officer Patricia McCabe said in an emailed statement.

In the draft opinion published by Politico, Alito said that Roe was wrongly decided and that it had inflamed rather than united public opinion over the contentious issue.

“We hold that Roe and Casey must be overruled,” said the document, which Politico said was labeled a draft “Opinion of the Court.” Planned Parenthood v. Casey, decided in 1992, affirmed the abortion right established in Roe. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

Hundreds gathered outside the Supreme Court on May 2 following the news about a leaked draft opinion indicating that a majority of the court is prepared to overturn the right to abortion. (Video: Julie Yoon/The Washington Post)

The next frontier for the antiabortion movement: A nationwide ban

In the draft, Alito reportedly discounts concerns about overruling long-standing precedent. The legal principle known as stare decisis “does not compel unending adherence” to what he writes is “Roe’s abuse of judicial authority.”

The draft says Roe was “egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issues, Roe and Casey have enflamed debate and deepened division.”

The draft asserts that overturning Roe would not jeopardize other rights, such as the right to contraception, protection of homosexual sex and same-sex marriage.

“We emphasize that our decision concerns the constitutional right to abortion and no other right,” Alito writes. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

That would be disputed by the court’s liberals.

The decision about whether to overturn Roe is one of the most controversial the court has faced in years, but still there was shock over the Politico disclosure. Some members of Congress called for investigations of the extremely rare Supreme Court leak.

It followed an editorial in the conservative opinion section of the Wall Street Journal last week that seemed to warn that Chief Justice John G. Roberts Jr. was trying to turn the vote of one of the conservative justices to avoid something as dramatic as overturning Roe. The piece cited no source for its speculation.

What the Supreme Court justices have said about abortion and Roe v. Wade

Neal Katyal, a former acting solicitor general who was a law clerk to Justice Stephen G. Breyer, said the draft opinion appears legitimate and suggests that there was a preliminary vote after oral argument in December in favor of fully overturning Roe.

He compared the leak to that of the Pentagon Papers, the secret report on U.S. policy in Vietnam decades ago. “It’s possible the Court could pull back from this position, but this looks like they voted that way after the oral argument,” he tweeted.

Nancy Northup, president of the Center for Reproductive Rights, which represented the clinic challenging the Mississippi law, said, “We don’t know if the document as reported by Politico is legitimate, and we don’t know if it represents the views of a majority of the Supreme Court.”

“What we do know is that if the Supreme Court overturns Roe v. Wade it will be an unjustified, unprecedented stripping away of a guaranteed right that has been in place for nearly five decades,” Northup said. But, she added, “it’s important to remember that the Court has not yet issued a decision and abortion remains legal in the United States.”

Crowds slowly gathered at the court after the report was published, with some carrying candles. At one point, perhaps 1,000 people were on the sidewalk in front of the building, which is still closed to the public because of the coronavirus pandemic.

Jessie Yep, 30, of Chicago was visiting Washington with her mother when she saw the crowds forming.

“It’s crazy to be here as this is happening and see this in person,” Yep said. “I’m pro rights of women, and this seems like it’s really going to affect a lot of marginalized people and their ability to get access to safe abortions. Abortions will still happen, but they won’t be safe.”

One group was yelling “Abortion is violence,” while another chanted “Abortion is health care!”

A woman named Hannah, who spoke on the condition that she be identified only by her first name, stood in the middle of First Street and prayed that the justices “would find resolve.” She said she was “very sad to see people cheering to kill our children” and “was praying that people’s hearts will be softened.”

The report suggesting Roe’s impending demise sparked immediate reactions on Capitol Hill, with many on the left calling for legislative action to preserve abortion rights nationally.

“Congress must pass legislation that codifies Roe v. Wade as the law of the land in this country NOW,” Sen. Bernie Sanders (I-Vt.) wrote on Twitter on Monday night, calling for an end to the Senate’s filibuster rule to enact such a bill with a simple majority.

In fact, a Democratic bill that would have done just that garnered only 46 votes in February, thanks to the opposition of Sen. Joe Manchin III (D-W.Va.) and the absences of several other Democrats.

While it is possible that a narrower bill could attract some GOP moderates such as Collins and garner a majority, attempts to eliminate the 60-vote supermajority threshold have persistently fallen flat in the current Senate, which is split 50-50 between the party caucuses.

The more immediate practical effect played out on the campaign trail, where Democratic candidates have seen the impending abortion ruling as a potential game changer in races where they have been on the defensive because of a fraught economy and unpopular president.

Multiple Democratic Senate candidates issued statements Monday night calling on Congress to act to protect Roe. “We have had almost 50 years to codify Roe into law, we can’t afford to wait one more day,” said Wisconsin state Treasurer Sarah Godlewski, who is running to unseat Sen. Ron Johnson (R).

Sen. Patty Murray (D-Wash.), who was first elected to the Senate in 1992, months after the Supreme Court’s last landmark abortion decision, called it a “break the glass” moment in a statement Monday.

“It’s not happening to someone else, in some other state — it’s happening everywhere, and the highest court in the land is preparing to rip away your rights at this very moment,” she said. “We need to fight back with everything we’ve got right now.”

The reaction was more subdued on the right, where the report was met with a mix of disdain for the unprecedented leak and hope that an outcome that many Republicans had spent a lifetime in politics working toward was finally at hand.

“While it’s very bad — inappropriate and discouraging — that there is such a significant leak at SCOTUS … Let’s pray the final decision is at least as strong and unequivocal as the leaked draft,” Rep. Warren Davidson (R-Ohio) tweeted.

Even without evidence about the leaker’s identity or motivations, several Republicans publicly cast the leak as an attempt to intimidate the justices into backing away from their positions — or at least spark a political backlash.

Rep. Mike Johnson (R-La.) deemed it a “a shameless attempt to pressure justices into reversing their correct position that individual states can outlaw killing unborn babies.”

Sen. Tom Cotton (R-Ark.) called on the court and the Justice Department to “get to the bottom of this leak immediately using every investigative tool necessary.”

“In the meantime,” he added, “Roe was egregiously wrong from the beginning & I pray the Court follows the Constitution & allows the states to once again protect unborn life.”

Ann E. Marimow, Joe Heim, Casey Parks, Caroline Kitchener and Katy Burnell Evans contributed to this report.