Politico has obtained a draft of a majority decision authored by Justice Samuel Alito that would overturn Roe v. Wade, in a startling breach of Supreme Court confidentiality and secrecy.
According to Politico, the draft was circulating in early February. The final opinion has yet to be announced, and votes and language may alter before the formal release of the opinions. It is not expected that the opinion in this matter would be released until late June.
CNN has not independently verified the validity of the paper.
Politico claims to have verified the draft. A representative for the Supreme Court declined to respond to CNN.
The court would reject Roe v. Wade’s ruling that there is a federal constitutional right to abortion, according to the text. The decision would be the most significant abortion decision in decades, and it would change the landscape of women’s reproductive health in the United States.
Five justices appear to be in favor of overturning Roe. According to CNN, Chief Justice John Roberts did not want to invalidate Roe v. Wade fully, thus he would have dissented from Alito’s draft opinion, likely with the court’s three liberals.
Alito, along with Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, would make up the five conservative justices who would overturn Roe.
According to CNN, Roberts is willing to uphold a Mississippi statute that prohibits abortion beyond 15 weeks of pregnancy. Under existing legislation, the government cannot interfere with a woman’s decision to terminate a pregnancy before the fetus reaches the point where it can live outside the womb, which is around 23 weeks.
On Monday evening, a largely solemn gathering gathered outside the Supreme Court building to console one another and ponder what to do next.
“Hey, hey, ho, ho, Samuel Alito’s gotta go,” the audience chanted at one point. “We’re not going back.” “Abortion rights are being attacked; what are we going to do? Stand up and fight back.” “Fill the courts with people.”
By the high court’s standards of secrecy, Politico’s publication of the draft is unprecedented. The interior deliberations of the justices as opinions are formed and votes are cast are among Washington’s most tightly guarded secrets.
“This is truly stunning news for the Supreme Court as an institution,” said Steve Vladeck, CNN Supreme Court expert and University of Texas School of Law professor. “Not only is the outcome it foreshadows — the overturning of Roe and Casey — a shock to our constitutional politics, but we’ve never seen a leak from inside the Court quite like this, where we’re not just hearing what the outcome will be, but also seeing the draft majority decision in advance. It’s hard to imagine that the former doesn’t help to explain the later, yet both are earthquakes.”
Dobbs v. Jackson is the case in question. Oral arguments were heard on December 1 in a case challenging Mississippi’s 15-week abortion prohibition. A final opinion on the case is expected to be released later this spring or early summer.
Alito says in the draft judgment that Roe “must be overruled.”
“The Constitution has no mention to abortion, and no fundamental clause implicitly protects such a right,” Alito stated. He claimed that Roe was “egregiously erroneous from the outset,” with “exceptionally weak reasoning” and “damaging repercussions.”
“It is time to pay attention to the Constitution and restore the subject of abortion to the people’s representatives,” he continued.
According to the draft, he stated, “That is what the Constitution and the rule of law demand.”
Nearly half of the states have passed or will pass laws prohibiting abortion, while others have implemented severe regulations.