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Supreme Court will investigate leaked draft of abortion opinion

The document is authentic but not final, Chief Justice John Roberts said Tuesday, as its public disclosure roiled the nation’s political landscape

On May 2, an initial draft of a Supreme Court opinion overruling Roe v. Wade was leaked to Politico. The Post’s legal affairs reporter Ann Marimow explains. (Video: The Washington Post)
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A Supreme Court divided by ideology and shaken by public disclosure of its private deliberations vowed an internal investigation Tuesday, as a leaked draft opinion that would mean the end to a constitutional right to abortion agitated the national political landscape.

The reaction focused on two questions: Why was a draft opinion by Justice Samuel A. Alito Jr. overturning Roe v. Wade leaked to Politico, and what would a final decision to that effect mean for the hundreds of thousands of women each year who end their pregnancies?

Chief Justice John G. Roberts Jr. took the extraordinary step Tuesday of confirming the authenticity of the draft opinion. But it was not final and just the opening phase of the court’s work, he said, and the justices are opening an inquiry into how it became public.

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

“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.”

While the chief justice’s statement said the draft was genuine, “it does not represent a decision by the Court or the final position of any member on the issues in the case.”

Politico’s report said that five justices had decided to uphold a Mississippi law that would ban abortions after 15 weeks of pregnancy, and overturn the landmark decision that established a constitutional right to abortion nearly 50 years ago.

If the final decision mirrors Alito’s draft in striking down Roe and the court’s subsequent affirmations of abortion rights, the procedure could become virtually unavailable in large swaths of the South and Midwest. States there have tightened restrictions in recent years and passed laws that would prohibit abortion entirely once the Supreme Court says it is a matter for state legislatures to decide.

More than 860,000 abortions took place in the United States in 2017, according to data collected by the Guttmacher Institute, a nonprofit research center based in New York and Washington that supports abortion rights. About 54 percent of all abortions were medication abortions performed early in pregnancies, and bans and prohibitions could apply to both those and surgical abortions.

President Biden and Vice President Harris issued separate statements lamenting the prospect of overturning Roe, and they and Democratic and Republican leaders on Capitol Hill had the fall’s midterm elections in mind.

Harris said Roe was about abortion but “at its root, protects the fundamental right to privacy. What is clear is that opponents of Roe want to punish women and take away their rights to make decisions about their own bodies. Republican legislators in states across the country are weaponizing the use of the law against women.”

As other Democratic politicians have done, the president turned the developments into a pitch to voters.

“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 his 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.”

Majority of Americans say Supreme Court should uphold Roe, new Post-ABC poll finds

On Capitol Hill, news of Roe’s impending demise was met with a peculiar split-screen reaction: While Democrats were eager to talk about the substance of the draft opinion, which would overturn a precedent that most Americans support, Republicans were overwhelmingly focused on the leak itself — calling for investigations and even prosecutions while bemoaning the ongoing politicization of the court.

Senate Minority Leader Mitch McConnell (R-Ky.) asserted that “by every indication” the leak was “yet another escalation in the radical left’s ongoing campaign to bully and intimidate federal judges and substitute mob rule for the rule of law.”

“The integrity and independence of the Supreme Court is once again under attack,” McConnell said, adding “We have within the court itself someone else threatening the independence of the court.”

Senate Minority Leader Mitch McConnell (R-Ky.) blamed liberals for the reported leaked Supreme Court opinion that would overturn abortion rights in the U.S. (Video: U.S. Senate)

Democrats, meanwhile, vowed to fight on the Senate floor and on the campaign trail.

While the House passed legislation that would enshrine the protections of Roe and its successor, Planned Parenthood v. Casey, into federal law, the legislation fell well short of the 60 votes necessary to vault a Senate filibuster in February.

Senate Majority Leader Charles E. Schumer (D-N.Y.) said the Senate would vote again as soon as next week on another bill to codify existing abortion rights, though it appeared squarely aimed at scoring political points rather than making legislation.

“The bottom line is we know that history is on our side, and we know the politics is on our side — and you can be sure in 2022 this is going to be an issue all across the country, and Republicans will not be able to run away from it,” Schumer said.

Two Democratic senators who have resisted calls to eliminate the filibuster said Tuesday they had not changed their minds, and one Republican supporter of abortion rights, Sen. Susan Collins of Maine, said she could support legislation enshrining Roe but not eliminating the filibuster to pass it.

Democrats called to enshrine Roe v. Wade as law on May 3 in response to the leaked Supreme Court draft opinion proposing to overturn the landmark abortion case. (Video: Blair Guild/The Washington Post)

Collins and Murkowski are put on defensive after leaked Roe draft

Some outspoken Democrats acknowledged the battle was headed to the ballot box, not the Senate floor: “Let me be clear: I’m not going to stop fighting to get to President Biden a bill to protect the right to abortion, but we need Americans everywhere to send us more pro-choice Democrats in the Senate so we can get this done,” said Sen. Patty Murray (D-Wash.).

A Washington Post-ABC News poll conducted last week found that 54 percent of Americans think the 1973 Roe decision should be upheld while 28 percent believe it should be overturned — a roughly 2-to-1 margin.

The Post-ABC poll also found that 57 percent of Americans oppose their state making abortions legal only in the first 15 weeks of pregnancy, while a similar majority, 58 percent, opposes limiting abortion to the first six weeks of pregnancy — moves some Republican-led states have taken in recent months.

In his statement Tuesday, Roberts said he has asked the court’s in-house police service, led by Marshal Gail A. Curley, to start an investigation into how the draft opinion was leaked to Politico. It was unclear whether the court intends to publicly release the results of its inquiry.

“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,” Roberts said. “Court employees have an exemplary and important tradition of respecting the confidentiality of the judicial process and upholding the trust of the Court. 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.”

But it was only the latest development in a divisive year at the court that has seen short tempers and a series of events that have tested its assertions about mutual respect and rising above politics.

The justices’ criticisms of one another have been particularly sharp, and most notable in the Mississippi abortion case. Justice Sonia Sotomayor said that if the court’s new conservatives overturn Roe, “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible.”

When a contretemps erupted over whether Justice Neil M. Gorsuch was acting against Sotomayor’s wishes when he declined to wear a mask on the bench during a coronavirus outbreak, the two had to issue a joint statement attesting to their warm friendship.

Ethics experts see Ginni Thomas’s texts as a problem for Supreme Court

Most politically divisive, though, was a Washington Post-CBS News revelation that Justice Clarence Thomas’s wife, Virginia Thomas, known as Ginni, repeatedly pressed then-White House Chief of Staff Mark Meadows to pursue efforts to overturn the 2020 presidential election, at a time when President Donald Trump was saying he would challenge the results at the Supreme Court.

Legal ethicists who in the past said criticism of the two-career marriage was unwarranted questioned whether Thomas should recuse himself from all election-related litigation.

Earlier this year, he was the only justice to note his dissent when the court turned down Trump’s request to block the National Archives from sending White House documents requested by the House committee as part of its investigation into the Jan. 6, 2021, riot at the U.S. Capitol.

Roe v. Wade has been a topic of discussion at most Supreme Court confirmation hearings since the landmark abortion case was decided. (Video: Blair Guild/The Washington Post)

The leak of the draft opinion was the most shocking event of all, though.

Sheldon Snook, a former senior official at the Supreme Court, said the importance of confidentiality is deeply ingrained in the culture of the court’s workforce, with all new employees receiving ethics training at the time of hiring. The court itself “usually does not comment on its internal business, so the fact that the chief justice did indicates just how grave the breach is,” said Snook, who worked in the office of the counselor to the chief justice for more than five years.

The chief justice had no choice but to order an investigation to determine the leak’s source and the person’s motivation, he added.

Less clear is how aggressive the chief justice intends to be in seeking accountability. Disclosure of the draft document is not necessarily a crime, legal experts noted, though U.S. criminal code could be interpreted to make the case for a charge of theft of government information.

The original Roe v. Wade decision also was leaked to the press

Roberts’s decision to investigate is not without precedent. A law clerk to Justice Joseph McKenna resigned in 1919 after he was indicted by the Justice Department for sharing business-related court decisions before they were formally released with Wall Street investors, according to research by Judge John Owens of the U.S. Court of Appeals for the 9th Circuit.

Owens found that the Justice Department’s case against the law clerk fell apart in part because there was at the time no explicit prohibition on insider trading. The law clerk’s case never went to trial and was dismissed in 1929.

In 1973, when the result of the Roe decision was leaked by a Supreme Court clerk to Time magazine, Chief Justice Warren Burger called for the leaker to be named and punished. According to author James D. Robenalt, the law clerk who gave the information to Time confessed immediately and offered to resign his post with Justice Lewis F. Powell Jr.

While Burger was angry about the leak, he accepted the law clerk’s apology and the clerk went on to serve another term with the justice, according to Robenalt.

At the Supreme Court on Tuesday, crowds of demonstrators continued to gather.

Nishi Sinha, 55, of Capitol Hill, stood near the front of the crowd and held out her phone to capture the scene in front of her, including abortion-rights demonstrators holding signs saying “Not your uterus or your choice” and “Abortion is health care.”

“I'm fighting for everyone who wants to make the choice themselves. It's about dignity,” said Sinha, a financial economist.

On the east side, designated the antiabortion side by authorities, Steve Corson stood alone next to a sign that read “Pro Choice Preborn Rescue Right Now.”

A street preacher and retired retail worker from Arizona, he said he came to D.C. earlier this year with the People’s Convoy, a vehicular protest over coronavirus vaccine mandates, and remained after it left. “This is a liberal, leftist area,” he said. “I spend a lot of time alone.”

Ariana Eunjung Cha, Scott Clement, Mike DeBonis, Emily Guskin, Caroline Kitchener, Justin Wm. Moyer, Ellie Silverman and Matt Zapotosky contributed to this report.

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