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Biden says draft opinion overturning Roe v. Wade takes ‘radical’ approach

Washington, DC - May 3 : Abortion rights advocates and antiabortion advocates demonstrate outside the Supreme Court after a leak of a draft majority opinion overturning abortion rights, on Capitol Hill on Tuesday, May 03, 2022 in Washington, DC. (Jabin Botsford/The Washington Post)
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Welcome to special coverage from Post Politics Now.

Today, President Biden said it would be a “radical decision” if the Supreme Court followed through with a leaked draft opinion that would overturn Roe v. Wade, the landmark case legalizing abortion. Biden said Congress needs to codify abortion protections but would not say whether he would support eliminating the filibuster in the Senate to allow such legislation to pass in the evenly divided chamber.

Biden’s comments to reporters came as Chief Justice John G. Roberts Jr. said in a statement Tuesday that the leaked draft opinion that proposes overturning Roe is authentic but not final, and he is opening an investigation into how it became public.

The publication of the opinion has ignited fierce debate over the future of abortion rights in the United States. Antiabortion activists are expressing cautious optimism that the court is on the verge of pushing decisions about the legality of the procedure to the states, while abortion rights activists warned that women could soon be stripped of rights in place for a half-century.

Here’s what else to know

  • Politico said a draft opinion was circulated in February by Justice Samuel A. Alito Jr. The report said Alito, along with Justice Clarence Thomas and all three of President Donald Trump’s nominees to the court — Justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — voted to overturn the precedent. The leak was an extreme breach of court protocol.
  • The draft was leaked ahead of a ruling on a Mississippi law that bans almost all abortions after 15 weeks of pregnancy. In accepting the case, the court said it would decide whether all pre-viability prohibitions on elective abortions are unconstitutional.
  • It could be months before it is clear whether the leaked document will serve as the basis for the court’s decision or if it was just an opening round of negotiations.
  • Biden on Tuesday visited a Lockheed Martin facility in Troy., Ala., that manufactures weapon systems including Javelin antitank missiles being supplied to Ukraine.

Got a question about the politics of abortion? Submit it here. At 3 p.m. weekdays, return to this space and we’ll address what’s on the mind of readers.

2:33 p.m.
Headshot of Seung Min Kim
Seung Min Kim: How Sen. Casey stands out — One of the more interesting statements Tuesday in the aftermath of the leaked Roe draft ruling came from Sen. Robert P. Casey Jr. (D-Pa.), who has held relatively conservative views on abortion rights and whose father, the elder Robert P. Casey, waged a battle as Pennsylvania governor against Planned Parenthood that ultimately led to the 1992 landmark Supreme Court decision.In a brief statement, the younger Casey stressed that if the draft opinion is, indeed, how the Supreme Court will rule, he has “serious concerns about what overturning almost 50 years of legal precedent will mean for women in states passing near or total bans on abortion.”And in an echo of the “safe, legal and rare” mantra on abortion that has largely fallen out of favor with the modern-day Democratic Party, Casey emphasized that “Congress should be working to reduce the number of abortions and unintended pregnancies and doing much more to support women and families.”Characterizing Casey’s record on abortion is more complicated than most of his fellow Democrats’. He helped advance the Women’s Health Protection Act this year, legislation intended to codify the rights in Roe. But when Republicans controlled the Senate majority, Casey backed a federal ban on abortion after 20 weeks of pregnancy. He also supported the Hyde Amendment, which bars federal funding for abortions.Yet those positions have not won him much favor with some of the antiabortion groups, which also emphasize votes on Supreme Court nominations as a litmus test for senators and Senate candidates. On those, Casey has been consistent, voting against all three of President Donald Trump’s nominees to the high court.
Seung Min Kim, White House reporter
2:26 p.m.
Headshot of Amy Wang
Amy Wang: Warren doesn’t hold back — Sen. Elizabeth Warren (D-Mass.) is angry.While other Democrats were releasing carefully worded statements about the possibility that Roe v. Wade could be overturned, Warren was standing on the steps of the Supreme Court, furiously protesting the looming possibility of an abortion ban.“I am angry because of who will pay the price for this,” Warren shouted, pointing her finger to punctuate her words, her voice shaking at times. “It will not be wealthy women. … This will fall on the poorest women. This will fall on the young women who have been abused, who are victims of incest. This will fall on those who have been raped. This will fall on mothers who are already struggling.”As someone who covered Warren’s presidential campaign, I have watched many of the senator’s speeches and interviews, on and off the campaign trail. Abortion rights came up early and not infrequently in her campaign. (She had vowed to wear her Planned Parenthood scarf to her inauguration if she won the presidency — and did end up wearing it to the Biden-Harris inauguration.) But I had never seen Warren speak with as much anger, conviction or urgency as she expressed on the steps of the Supreme Court on Tuesday.As she left the Supreme Court later, Warren said Congress could codify Roe v. Wade into the law of the land — “they just need to do it.”“The Republicans have been working toward this day for decades,” Warren said. “They have been out there plotting, carefully cultivating these Supreme Court justices so they could have a majority on the bench who would accomplish something that the majority of Americans do not want.”
Amy Wang, National politics reporter
12:28 p.m.
Headshot of Paul Farhi
Paul Farhi: A stunning victory for Politico — The Supreme Court leak was a bombshell, a monumental scoop for Politico, but left many questions unanswered. Who leaked it and why? How long did Politico have the document, and how was it authenticated? And why was the leak given to Politico, a solid news organization but neither the most prominent in Washington nor the one best known for its Supreme Court reporting?The publication’s reporters and editors remained tight-lipped, explaining almost nothing about how they went about landing the story. By Tuesday morning, however, Roberts ordered an investigation of the leak. While it’s not clear whether an investigation will uncover the source, Roberts’s statement was a victory of sorts for Politico, as it effectively confirmed the document in question had come from the court.
Paul Farhi, Media reporter
10:57 a.m.
Headshot of Paul Kane
Paul Kane: The backstory of Collins and Gorsuch — Justice Neil M. Gorsuch has largely avoided much criticism from Democrats. Gorsuch, after all, replaced another Republican appointee, the late Justice Antonin Scalia, so his rulings have not tipped the ideological balance of the Supreme Court.Sen. Susan Collins (R-Maine), however, noted in a statement Tuesday how the abortion rights draft decision would be “completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings.”Her vote for Justice Brett M. Kavanaugh provided the critical margin for his confirmation — replacing the court’s swing vote, Justice Anthony M. Kennedy, who supported Roe v. Wade, with a more conservative one — but Collins provided moderate credentials with her forceful support for Gorsuch.Her critique Tuesday hinted at a cornerstone of her March 2017 speech explaining why she supported Gorsuch, based on his comments about “precedent” in their private one-on-one meeting:“I asked Judge Gorsuch how he approaches legal precedents. I asked him if it would be sufficient to overturn a long-established precedent if five current justices believed that a previous decision was wrongly decided. He responded: ‘emphatically no.’ And that, to me, is the right approach. He said a good judge always starts with precedent and presumes that the precedent is correct.”
Paul Kane, Senior congressional correspondent and columnist
9:39 a.m.
Headshot of Seung Min Kim
Seung Min Kim: How Murkowski thought Kavanaugh would rule on abortion — Sen. Susan Collins (R-Maine) gets the lion’s share of the attention and criticism from the left for her public confidence that Justice Brett M. Kavanaugh, the man who replaced Justice Anthony M. Kennedy, would not gut access to abortion.Less noticed is how Sen. Lisa Murkowski (R-Alaska) — the only other GOP senator who supports abortion rights — apparently believed Kavanaugh would rule when she delivered a floor speech on his nomination more than three years ago. She, too, was sure he would not vote to overturn Roe.Murkowski did not support Kavanaugh’s nomination, citing his temperament during his extremely contentious confirmation hearings in 2018. But on a number of issues his detractors raised in an effort to kill his nomination — abortion, health care, Native American concerns — Murkowski made clear she was comfortable with Kavanaugh as a Supreme Court justice.“I do not think that Judge Kavanaugh will be a vote to overturn Roe v. Wade,” Murkowski said.Citing Collins’s speech earlier that day, the Alaska Republican continued: “And I also join with her in saying that I do not think that protections for those with preexisting conditions will be at risk. And I also do not think that he will be a threat to Alaska Natives. This is an issue that had certainly been raised. But I had extended conversations with the judge on just these issues.”
Seung Min Kim, White House reporter
9:15 a.m.
Headshot of Mike DeBonis
Mike DeBonis: Democratic leaders try to keep focus on Republicans — While some Democrats have reacted to the reports of the apparent impending demise of Roe to amp up calls on their own party to end the Senate filibuster and pass legislation overriding the court, the top Democratic congressional leaders kept their fire trained solely on Republicans.In a joint statement Monday night, House Speaker Nancy Pelosi (D-Calif.) and Senate Majority Leader Charles E. Schumer (D-N.Y.) in a statement called the potential ruling the work of “Republican-appointed Justices … who are in no way accountable to the American people.” They added that GOP senators who “voted for Trump Justices pretending that this day would never come will now have to explain themselves to the American people.”That posture by Pelosi and Schumer is a reflection of legislative reality: A bill enshrining Roe doesn’t have 50 votes, even setting aside the well-established aversion several Democrats have to eliminating the filibuster’s 60-vote threshold.It also recognizes political reality — that the abortion rights battle, at least this year, will be fought at polling places and not on Capitol Hill. The defense of Roe has the potential to be a powerful campaign weapon for Democrats in a midterm-election year in which they have struggled to gain traction, and top party leaders are intent on making sure that voters know that it is Republicans who ultimately are responsible for a potential sea change in American life.
Mike DeBonis, Congressional reporter covering the House of Representatives
8:00 a.m.
Headshot of Caroline Kitchener
Caroline Kitchener: What comes next for the abortion rights movement? — I was really struck by the way leading abortion rights groups responded to the leak Monday night. One top Planned Parenthood official emphasized that this is only a draft opinion and could be changed if people turn out in droves all over the country this week. That seems extremely unlikely, but it shows where the movement is at right now. It is facing a complete and total defeat, and is desperate.As abortion rights groups geared up for this decision over the past few months, they’ve been adamant that this kind of full-throated retraction of Roe would spark mass protest and would be devastating for Republicans at the midterms. We did not see that kind of reaction when Texas banned abortion at six weeks of pregnancy in September — and most abortions have been banned there for nine months. I’ll be watching closely to see how much outrage this sparks today and for the rest of the week. That’ll be one early indication of how this kind of decision will play out politically.
Caroline Kitchener, Reporter focusing on the politics of abortion