Politico obtained a draft opinion that shows that the Supreme Court is poised to overturn Roe v. Wade, giving states the power to ban abortion.
The leak of a draft opinion is extremely rare for the court, which has held its proceedings as secret until their rulings are announced.
“Roe was egregiously wrong from the start,” Justice Samuel Alito writes in the draft (read it here). Instead, he wrote that it should be up to “the people’s representatives” to decide. States could then enforce abortion bans or pass new ones.
Politico also posted the complete draft opinion — which you can read here — which indicates that it was circulated on February 10.
The court’s opinion is not final until it is made public and published, something that is not expected until late June or even early July, near the end of its term when it has traditionally released its rulings in the most controversial cases.
Politico noted that justices can sometimes change their votes, but cited a source as saying that four other justices, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, joined Alito in the majority to overturn Roe and that the “line-up remains unchanged as of this week.”
Politico editor-in-chief Matt Kaminski and executive editor Dafna Linzer wrote in a note to the staff on Monday evening 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.”
“We take our responsibilities to our readers and our publication with the greatest seriousness. Our obligation, as protected by the First Amendment, is to report the news and inform our audience. Our journalism speaks for itself, and that is no different here.”
A spokeswoman for the court did not immediately respond to a request for comment. Shortly after the Politico story published, barricades went up on the steps of the court, and dozens if not hundreds of protesters began to arrive.
Neal Katyal, former acting solicitor general, wrote on Twitter that the opinion “appears legitimate.” He compared such a leak to that of the Pentagon Papers in 1971.
“This means that there was a preliminary vote to fully overrule Roe v. Wade and that a majority of the court agreed,” Katyal wrote. The justices take a tentative vote after oral arguments, which took place in the case in December.
He added, “It’s possible the court could pull back from this position, but this looks like they voted that way after the oral argument.”
The nature of the leak quickly became the topic of speculation. Some warned that the the document was marked as the first draft and could change significantly in subsequent incarnations. Josh Gerstein, who reported and wrote the Politico piece along with Alexander Ward, appeared on MSNBC’s The Rachel Maddow Show shortly after the story was posted, and expressed confidence in their sourcing.
Maddow, who has extensively covered state-level moves to restrict abortion, said that they spoke with four different Supreme Court clerks who agreed that “this looks like a work product from the court, whether or not it will be revised before it is ultimately published.”
On CNN, Jeffrey Toobin said, “The idea that a decision of this magnitude could leak is really a shattering experience for the justices and the court, and I really don’t know how the institution is going to recover.” On Fox News, Laura Ingraham surmised that the leaker was a law clerk trying to change the final outcome, and she focused for a bit on whether Chief Justice John Roberts would find who was responsible for giving Politico the draft.
As the Politico bombshell began to dominate cable news and social media, commentators and lawmakers began to focus on its implications.
Maddow seemed a bit shaken at the definitive nature of the draft ruling. When the Supreme Court held oral arguments in Dobbs v. Jackson Women’s Health Organization, court observers said that a majority of the justices appeared ready to water down or revise the Roe v. Wade precedent, but Alito’s draft opinion is still surprising in its directness.
Maddow said, “The bottom line here is that this is, this would appear to be the day that, I mean, I was born in 1973, the year that Roe v. Wade was passed. In my entire sentient life, women have been talking about the day that this would come, and that Roe v. Wade would be overturned and that the United States would become a country in which abortion was treated as a crime, and it was the government, was the state that is allowed to decide whether or not women give birth.”
She added that the fact that the Supreme Court was ready to overturn Roe v. Wade, and the possibility that Republicans would ban abortion nationwide if they again took control of Congress and the White House, “means that we are on the precipice of becoming a very different country, and that our daughters and granddaughters living in a very, very different world.”
Hillary Clinton tweeted, “Not surprising. But still outrageous. This decision is a direct assault on the dignity, rights and lives of women, not to mention decades of settled law. It will kill and subjugate women even as a vast majority of Americans think abortion should be legal. What an utter disgrace.”
California Governor Gavin Newsom wrote, “Our daughters, sisters, mothers, and grandmothers will not be silenced. The world is about to hear their fury. California will not sit back. We are going to fight like hell.”
House Speaker Nancy Pelosi and Senate Majority Leader Chuck Schumer released a statement saying that the opinion to overturn Roe v. Wade, if finalized, “would go down as an abomination, one of the worst and most damaging decisions in modern history.”
Several of these conservative Justices, who are in no way accountable to the American people, have lied to the U.S. Senate, ripped up the Constitution and defiled both precedent and the Supreme Court’s reputation – all at the expense of tens of millions of women who could soon be stripped of their bodily autonomy and the constitutional rights they’ve relied on for half a century.
Kayleigh McEnany, the former press secretary under President Donald Trump, wrote, “WOW!!!!!! If true, an incredible development for LIFE! Maybe we will no longer share abortion laws with North Korea and the People’s Republic of China???”
Some commentators said that the court majority’s willingness to overturn precedent raised the possibility that other decisions also were threatened, including the 2015 ruling that affirmed the right to same-sex marriage.
“If they come after Roe, they are going to come after everything. Gay marriage is next, and then they will come after protections for minority and marginalized communities,” Illinois Gov. J.B. Pritzker told CNN. “If this stands, it won’t end here.”
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