May 4, 2022
A leaked Supreme Court draft opinion written by Justice Samuel Alito and published late Monday by Politico indicates that the court may be preparing to overturn Roe v. Wade, the 1973 precedent that established a constitutional right to an abortion, reports The Wall Street Journal.
The draft, dated from February, couldn’t be independently confirmed, but legal observers said it appeared to be authentic. On Tuesday, May 2, Chief Justice John Roberts confirmed the draft was authentic and launched an investigation into the leak, according to a report by HuffPost.
According to the Journal, the 67-page opinion, marked as a first draft, declared that Roe was “egregiously wrong and deeply damaging,” and that Planned Parenthood v. Casey, a 1992 decision that limited but didn’t eliminate abortion rights, prolonged the court’s error.
“Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion,” the draft opinion said. “Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”
The draft does not necessarily represent the court’s ultimate decision in the case or even the majority’s current thinking. However, it is consistent with the tenor of December’s oral arguments in the case challenging Roe, Dobbs v. Jackson Women’s Health Organization, concerning Mississippi’s ban on abortions after 15 weeks. The draft was labeled the opinion of the court—implying that a majority of justices had agreed with it.
The apparent leak represents a nearly unheard of breach of the court’s private, behind-the-scenes deliberations on a blockbuster case that the court hasn’t yet publicly issued. It also could threaten longstanding bonds of trust on a court that has already been under ideological and personal strains.
After an initial vote among justices on a case, Supreme Court decisions can undergo considerable evolution in tone and substance as justices circulate draft opinions for weeks and months. Those drafts are circulated between chambers—with justices typically offering feedback, support, and criticism in writing—until the court arrives at a final ruling, which is frequently accompanied by concurring and dissenting opinions that weigh in on the court’s holding.
Given those internal processes, it’s possible that there are more recent versions of the decision that look different than the draft Politico published. And on occasions, justices can change their positions during deliberations.
The court’s decision has been expected by the end of June or early July.
Research contact: @WSJ