Report: Draft opinion suggests high court could overturn Roe

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A draft opinion suggests the U.S. Supreme Court could be poised to overturn the landmark 1973 Roe v. Wade case that legalized abortion nationwide, according to a Politico report released Monday.

A decision to overrule Roe would lead to abortion bans in roughly half the states and could have huge ramifications for this year’s elections. But it’s unclear if the draft represents the court’s final word on the matter — opinions often change in ways big and small in the drafting process.

Whatever the outcome, the Politico report represents an extremely rare breach of the court’s secretive deliberation process, and on a case of surpassing importance.

“Roe was egregiously wrong from the start,” the draft opinion states. It was signed by Justice Samuel Alito, a member of the court’s 6-3 conservative majority who was appointed by former President George W. Bush.

The document was labeled a “1st Draft” of the “Opinion of the Court” in a case challenging Mississippi’s ban on abortion after 15 weeks, 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 there is no constitutional right to abortion services and would allow individual states to more heavily regulate or outright ban the procedure.

“We hold that Roe and Casey must be overruled,” it states, referencing the 1992 case Planned Parenthood v. Casey that affirmed Roe’s finding of a constitutional right to abortion services but allowed states to place some constraints on the practice. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

A Supreme Court spokeswoman said the court had no comment and The Associated Press could not immediately confirm the authenticity of the draft Politico posted, which dates from February.

Politico said only that it received “a copy of the draft opinion from a person familiar with the court’s proceedings in the Mississippi case along with other details supporting the authenticity of the document.”

The draft opinion strongly suggests that when the justices met in private shortly after arguments in the case on Dec. 1, at least five voted to overrule Roe and Casey, and Alito was assigned the task of writing the court’s majority opinion.

Votes and opinions in a case aren’t final until a decision is announced or, in a change wrought 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 issues its decision. Critics of those measures have said low-income women will disproportionately bear the burden of the new restrictions.

The leak jumpstarted the intense political reverberations that the high court’s ultimate decision was expected to have in the midterm election year. Already, politicians on both sides of the aisle were seizing on the report to fundraise and energize their supporters on either side of the hot-button issue.

An AP-NORC poll in December found that Democrats increasingly see protecting abortion rights as a high priority for the government.

Other polling shows relatively few Americans want to see Roe overturned. 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; just 29% said the court should overturn the decision. In general, AP-NORC polling finds a majority of the public favors abortion being legal in most or all cases.

Still, when asked about abortion policy generally, Americans have nuanced attitudes on the issue, and many don’t think 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 can’t predict how the public might react and shouldn’t try. “We cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work,” Alito wrote in the draft opinion, according to Politico.

People on both sides of the issue quickly gathered outside the Supreme Court waving signs and chanting on a balmy spring night, following the release of the Politico report.

Reaction was swift from elected officials in Congress and across the country.

In a joint statement from Congress’ top two Democrats, House Speaker Nancy Pelosi and Senate Majority Leader Chuck Schumer said, “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.”

New York Gov. Kathy Hochul, also a Democrat, said people seeking abortions could head to New York. “For anyone who needs access to care, our state will welcome you with open arms. Abortion will always be safe & 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 wait for the Court’s official opinion.” But local officials were praising the draft.

“This puts the decision making back into the hands of the states, which is where it should have always been,” said Mississippi state Rep. Becky Currie.

Congress could act, too, though a bill that would write Roe’s protections into federal law stalled in the Senate after passing the House last year with only Democratic votes.

At Supreme Court arguments in December, all six conservative justices signaled that they would uphold the Mississippi law, and five asked questions that suggested that overruling Roe and Casey was a possibility.

Only Chief Justice John Roberts seemed prepared to take the smaller step of upholding the 15-week ban, though that too would be a significant weakening of abortion rights.

Until now, 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 seemed likely to be in dissent.

It’s impossible to know what efforts are taking place behind the scenes to influence any justice’s vote. If Roberts is inclined to allow Roe to survive, he need only pick off one other conservative vote to deprive the court of a majority to overrule the abortion landmark.

Twenty-six states are certain or likely to ban abortion if Roe v. Wade is overturned, according to the pro-abortion rights think tank the Guttmacher Institute. Of those, 22 states already have total or near-total bans on the books that are currently blocked by Roe, aside from Texas. The state’s law banning it after six weeks has already been allowed to go into effect by the Supreme Court due to its unusual civil enforcement structure. Four more states are considered likely to quickly pass bans if Roe is overturned.

Sixteen states and the District of Columbia, meanwhile, have protected access to abortion in state law.

This year, anticipating a decision overturning or gutting Roe, eight conservative states have already moved to restrict abortion rights. Oklahoma, for example, passed several bills in recent weeks, including one that goes into effect this summer making it a felony to perform an abortion. Like many anti-abortion bills passed in GOP-led states this year, it does not have exceptions for rape or incest, only to save the life of the mother.

Eight Democratic-leaning states 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 overturned.

The draft looked legitimate to some followers of the court. Veteran Supreme Court lawyer Neal Katyal, who worked as a clerk to Justice Stephen Breyer and therefore has been in a position to see drafts, wrote on Twitter: “There are lots of signals the opinion is legit. The length and depth of analysis, would be very hard to fake. It says it is written by Alito and definitely sounds like him.”

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30 thoughts on “Report: Draft opinion suggests high court could overturn Roe

    1. I thought the father of the child is supposed to do that. You think that’s the government’s responsibility?

    2. Adoption. That is much much more open/available and accepted now, than in early `70s

  1. I’ve always been someone who was pro-life, but also think education and caring about people is the right way to limit as opposed to just making it illegal. It doesn’t solve the problem, it just forces it underground. In general, rates had already declined substantially.

    If you care about life, it needs to be more than its when another person’s body. I’m guessing the majority who will be celebrating in the coming days would be the last to support additional funding for poor mothers without significant resources to help care for their children. It will be “Good luck, sorry about ya, at least my conscience is clear”.

    1. Why are there mothers without spouses or at least the fathers of the children raising their children?

      It’s clear from history and sociology that the government stepping in and replacing the father’s responsibility has caused the degradation of society we are seeing today.

      The number one predictor of future poverty is the lack of a father in the home. If the government gives even more incentive to have children out of wedlock, we’ll continue to suffer as a society.

    2. DH, if we really have a problem with absent fathers, then the full blame rests on the shoulders of those absent fathers. Providing help to mothers trying to raise children without the assistance of fathers is not causing those fathers to be absent. The fathers’ choice to be absent is causing the need, and it is downright absurd to argue otherwise. Do you truly believe throwing single moms and their babies into the streets is going to persuade absent fathers to have a change of heart?

      In any case, this whole notion that miniscule welfare benefits are causing the degradation of society is a ridiculous, oft-repeated right-wing myth. If anything is causing the degradation of society today, it’s unfettered social media, right-wing media and a plague of disinformation, combined with voter suppression that is enabling conservative minority rule. Case-in-point, the radical-right Supreme Court that is wildly out of step with the views of the nation, stacked with appointees made by a president elected by a minority of voters, a process enabled by a Senate that is skewed by the Constitution to overrepresent the minority of the country. One could easily argue that minority rule is bringing about the degradation of society.

    3. Steve D.,

      Why are women deciding on having children with men who aren’t committed to them or their children? Maybe the government’s provision of welfare, that really took off in the 1960s, caused the very problem that was claimed it would solve?

      The correlation between the spike in single motherhood and welfare in the 1960s couldn’t be clearer.

    4. Steve D, you are right on! The only thing I would add is that I think that all media, not just right wing, is contributing to the degradation of America.

    5. Steve D, I’m fundamentally pro-choice but am not as rigid about it and can certainly see and sympathize with the pro-life argument. The diminution of the family unit rarely results in a better outcome for the child.

      There are as many incompetent and careless single moms as there are deadbeat dads. Let’s keep in mind that numerous examples exist where the father isn’t aware of his child(ren) or that the mother explicitly seeks to raise the child(ren) on her own. I know of at least 1 or 2 of the latter. They aren’t all helpless damsels driven to circumstances by a cruel misogynist society. Family courts overwhelmingly favor women in all respects.

      As for your second paragraph, well, maybe you could just take a gun up to a highrise hotel in Las Vegas and fire downward at a country music festival. Problem solved!

      Thankfully, you’re not the majority you like to think you are.

  2. Claiming you’re are Pro-life is an outright lie. You’re anti-abortion because those that claim they’re Pro-life don’t care about life outside the womb.

    1. I don’t think pro-life people advocate for infanticide. Can’t say the same about the pro-abortion people.

    2. I’m not referring to infanticide. Most of those saying they’re Pro-life are GOP and they don’t seem to care about policies that benefit the lower income or middle class. They don’t care about poverty. They don’t care how many of these kids end up in foster care.

      They don’t care about providing health insurance to millions that cant afford it. The GOP has tried to repeal Obamacare, which not only provides health insurance to millions, but also provides protection against pre-existing conditions. The GOP doesn’t have an alternative to Obamacare and where is Donnie’s plan he promised us would be better.

      Now we hear some GOP want to take away SS and Medicare.

      There are 400 million guns in the US. More than the 330 million citizens. And now states are allowing guns to be carried and concealed without a permit.

      Next the GOP will take away rights of the LGBTQ.

    3. what Mark said.

      There’s a supply-side and a demand-side solution to eliminating abortion.

      The current idea is supply-side … if you ban abortion, then there won’t be abortions. I personally think this shows … a certain willful ignorance of why abortion got legalized in the first place, and a refusal to learn from history when the government tries to ban something. (The lessons of Prohibition must apparently be re-learned.)

      That even termination of ectopic pregnancies, those in which there is zero chance of life for the child and a significant risk of death to the mother, would be banned by some of these folks shows you how “out there” they are. They’re so pro-life that they’re willing to let a woman die an entirely preventable death to prove it!

      The demand-side approach, in which you have very few abortions because you spend the effort to dramatically reduce the number of unplanned pregnancies, would seem to me to be the better approach.

      But that has a number of social implications, like saying out loud that sex happens outside of marriage. Because that never happened in the past … just lots of women decided to go live on a farm with their cousin for a year.

      This has been coming since election day 2016. Full credit to Republicans for making that election about the Supreme Court. Democrats didn’t instill the same sense of urgency and outrage in their voters and the ramifications are still playing out. But it will be interesting to see what happens when social conservatives finally get what they want and abortion is banned … when a majority of voters were both OK with Roe v. Wade and the legalization of abortion.

  3. Rather than everyone dragging out their tired old opinions on abortion, the question should be: who leaked this and why? This isn’t a “source” or a page of notes. This was a data drop of a 60 page document that is highly confidential. Is this now acceptable procedure? A staffer doesn’t like how a case is going, so they send a confidential file to a “journalist”?

    1. You are right the liberals are losing elections and trying everything they can like releasing confidential documents to rally their vote on the eve of the Ohio primary. I hope a Clerk at SCOTUS is getting disbarred in the near future…

    2. The largest impact on the Ohio primary will be which crazy pants candidate wins. At least Hoosiers can now excuse Mike Braun by saying “Sure, but look at who Ohio has representing THEM”.

      The larger impact might be that Gorsuch and Kavanaugh apparently told Collins and Murkowski they wouldn’t overturn Roe. No clue why either woman would believe either man, especially Kavanaugh. But it would be something if those two decided to ditch the filibuster on this issue since they’d been lied to.

      There’s a non-zero chance that anti-abortion supporters will win the battle but lose the war. It will be fascinating to see how this plays out.

    3. Another thought, Chuck…

      If a liberal clerk had this in February, why wouldn’t they release it then? Why wait two months?

      What if this was leaked by a conservative clerk who didn’t want a more liberal opinion that might become the law of the land instead of what Alito wrote? What if Kavanaugh or Gorsuch thought about supporting something that, say, Roberts wrote instead?

      Because those five justices who agreed with Alito … it’s going to be very hard for them to support a more liberal opinion now. Their hand is forced into Alito’s hardline opinion.

  4. The amount of tired opinions on abortion are endless Chuck.

    The amazing part is how so few discuss health parameters on abortion.

    It’s beyond humbling to see a NICU and what those amazing healthcare providers can do to save 20+ week old baby. There are numerous reasons a baby doesn’t make it to term until a NICU staff and the OB/GYN steps in to save a child.

    The idea that a Mother can legally decide to end a child’s life even after term is truly immoral. Zero point zero mothers are at risk of dying delivering a full term child. That is a liberal farce.

    Maybe giving each State, the HCPs, and their constituents the power to decide what their community considers safe and ethical is the right first step. Any human being who willfully decides at week 24+ of child development, “nah, I’m good, I don’t really want a baby now…” has major ethics issues and has never really understood how precious life is.

    Either start requiring aptitude tests and licenses to conceive or find a more proactive solution. The last 60 years isn’t working…it’s very clear from the superior minds of Congress and government…

    Because listening to Chuck Schumer and Nancy Pelosi with their pretend enragement and fist pounding a podium with media microphones surrounding them sure as heck isn’t a solution.

    1. You think legislators are going to listen to HCP’s, will take their input? That’s adorable. They don’t listen to educators when it comes to education. They don’t listen to the head of the Indiana State Police when it comes to gun laws. Our legislators will do as they please.

      A reminder that today is the primary election and if you’re tired of not being listened to, today’s your chance to have a say. Since I have a legislator – John Jacob – who will not listen to any HCP, a man who insists it’s God’s will for a woman to be forced to carry an ectopic pregnancy until it bursts and perhaps kills her, when that ectopic pregnancy has a zero point zero chance of a live birth, I pulled a Republican ballot and voted for his opponent.

      As far as moms dying, I’m afraid the numbers don’t quite bear that out. Indiana’s maternal morality rate is the third highest in the United States.

    2. Keep making excuses Joe B. for career politicians on both sides of the aisle.

      (Unrelated to this topic, but I wouldn’t listen to union educators on education at this point given their complete and utter failure in the public school system. They don’t want to be held accountable for students failure and they shouldn’t be striking for a raise for failed performance.)

    3. Excuses? Apparently you forget how the American political system works. It’s on the citizens just as much as the politicians to ensure that elected representatives who don’t listen get sent back home and replaced with someone who will. Voters like you and I are not devoid of responsibility.

      The only feedback politicians take is the ballot box. What the excuse for voters who keep sending Pelosi, Schumer, McConnell, and McCarthy back? Or Andre Carson or Greg Pence, for that matter?

      I’d be fine with not listening to educators if we held the charter schools to the same standards. That $86 million walked out the door from a virtual school enrolling dead kids and the state of Indiana didn’t see fit to modify the accountability standards? Or if we only kept around the charter schools that got better results, like the state of Massachusetts? Sure, I can get behind that. What we’ve got now is an underfunded education system prioritizing giving tax dollars to churches and political donors over the future of the state of Indiana.

  5. Interesting that only men are commenting here, individuals least able to empathize with a woman who may have been raped or a young girl who may have been raped by her father or another male relative, or a mother-to-be who has learned her unborn baby has a congenital birth defect and who was informed by her ob-gyn that the baby will not survive to the age of five without millions of dollars for artificial support. What the Supreme Court majority appears to want is no exceptions, no matter what the mother wants or needs physically or emotionally.

    1. Totally missing your point about health issues. Where does the killing of people because they have a deformity or health issue end???

    2. …and your scenario Brent can be reviewed and addressed at 10 weeks via testing. Why can someone legally wait to make a decision with the data until full term delivery?

      And the premise that Father’s have no right to a say in these decisions is a non-starter from my perspective.

    3. Clark and JCB, pregnancy can and does cost the life of the mother. Do you want to save the baby and lose the mother (who may well have other children to raise)? As for the “health issues” of either the mother or the baby, we already have too many people resorting to “GoFundMe” efforts to pay for hospital and end-of-life expenses related to illnesses and deaths because people can’t afford routine medical costs, let alone exorbitant expenses related to saving the life of a baby that sadly will not be able to live the life that you live. Finally as for the father’s right to have a say, if the father raped the child he loses that right in my mind, and should be tried for a sec crime. Your lack of understanding let alone empathy for such people is mind-boggling.

    4. Another straw man argument. Rape less than 1% of abortions. Incest less than 0.5%.

      Stop acting like these are even a discussion point…

      “But, but, but, but…”