Supreme Court Police officers set up security barricades outside the U.S. Supreme Court in Washington, DC.
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The Supreme Court is poised to overturn the constitutionally protected right to abortion ensured by the nearly 50-year-old Roe v. Wade decision, according to a leaked initial draft of the new opinion obtained by Politico.
The draft is written by Justice Samuel Alito, with the concurrence of at least four other conservative members of the Supreme Court.
“We hold that Roe and Casey must be overruled,” Alito wrote in the 98-page draft decision, which relates to Mississippi’s strict new abortion law, according to Politico’s report, published Monday night.
“The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions.”
“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” the justice wrote in the draft published by the site.
“Roe was egregiously wrong from the start.”
Associate Justice Samuel Alito participates in the swearing-in ceremony for Defense Secreaty Mark Esper in the Oval Office at the White House in Washington, DC, on July 23, 2019.
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CNBC has been unable to confirm the authenticity of the draft opinion, which Politico said had been circulated among the justices in February, and to which the court’s three liberal members, Stephen Breyer, Elena Kagan and Sonia Sotomayor, are writing dissents.
It is unclear if there have been subsequent changes to the draft by Alito since it first circulated.
The draft opinion, if formally issued by the court before its term ends in about two months, would leave it to individual states to set any restrictions on when and how a woman could terminate their pregnancy.
While any state could allow abortions in all cases, states led by conservative Republicans in the South and Midwest are likely to impose much stricter restrictions than those currently in place.
Oklahoma’s House on Thursday passed a bill set to be approved by Gov. Kevin Stitt that would ban most abortions after about six weeks of pregnancy.
The Supreme Court ruling anticipated in Alito’s draft also would be a monumental victory for religious conservatives, who for decades have pushed states to adopt laws restricting abortion rights, and to get the Supreme Court to undo the Roe v. Wade decision, as well as its 1992 ruling in Planned Parenthood v. Casey, which had further cemented a woman’s right to end her pregnancy.
But Politico noted that Supreme Court draft opinions are not set in stone, and that justices sometimes change their positions on a case after a copy of a draft is circulated among them.
Politico also noted that “no draft decision in the modern history of the court has been disclosed publicly while a case was still pending. The unprecedented revelation is bound to intensify the debate over what was already the most controversial case on the docket this term.”
The highly respected Supreme Court news site SCOTUSblog tweeted: “It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin.”
Politico’s executive editor, Dafna Linzer, wrote in an editor’s note that “after an extensive review process, we are confident of the authenticity of the draft.”
“This unprecedented view into the justices’ deliberations is plainly news of great public interest,” she wrote.
A Supreme Court spokeswoman declined to comment to CNBC on the Politico report.
Alexis McGill Johnson, the CEO of Planned Parenthood Federation of America, in a statement reacting to the report said, “Let’s be clear: Abortion is legal. It is still your right.”
“This leaked opinion is horrifying and unprecedented, and it confirms our worst fears: that the Supreme Court is prepared to end the constitutional right to abortion by overturning Roe v. Wade,” McGill said.
“While we have seen the writing on the wall for decades, it is no less devastating, and comes just as anti-abortion rights groups unveil their ultimate plan to ban abortion nationwide,” she said. “Understand that Planned Parenthood and our partners have been preparing for every possible outcome in this case and are built for the fight. Planned Parenthood health centers remain open, abortion is currently still legal, and we will continue to fight like hell to protect the right to access safe, legal abortion.”
Alito’s draft ruling came in Dobbs v. Jackson Women’s Health Organization, a case centering on a Mississippi law that would ban almost all abortions after 15 weeks of pregnancy.
Lower federal courts had blocked the law on the grounds that it violated the legal protections established by the Roe and Casey decisions.
Those rulings together protect abortion before the point of fetal viability — around 24 weeks of gestation — and require that laws regulating abortion not pose an “undue burden.”
In oral arguments before the high court in December, the liberal justices expressed grave fears about the consequences of the court — which had already become a flashpoint for controversy and was facing all-time low approval from the public — reversing decades of precedent on perhaps the most divisive issue in American politics.
“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” Justice Sonia Sotomayor wondered aloud during those arguments. “I don’t see how it is possible,” she said.
In the draft opinion, as reported, Alito wrote, “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment.”
“Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage,” Alito wrote, according to Politico.
He continued, according to the news outlet: “But abortion is fundamentally different, as both Roe and Casey acknowledged because it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘unborn human being.'”
Alito wrote that the tradition known as stare decisis, or deference toward court precedents, “does not compel unending adherence to Roe’s abuse of judicial authority.”
“Roe was egregiously wrong from the start,” Alito went on. “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.”
“We end this opinion where we began,” Alito wrote.
“Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”
Alito’s draft anticipates the backlash to overturning Roe and Casey as he dismisses the idea of allowing that to affect how he and the other justices in the majority vote on the issue.
“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, according to Politico’s report.
“We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision.”