Politico has received what it describes as a draught of a majority decision authored by Justice Samuel Alito that would overturn Roe v. Wade in a startling violation of Supreme Court confidentiality and secrecy.
According to Politico, the draught was circulating in early February. The final opinion has not been announced, and before views are publicly released, votes and phrasing may change. It is anticipated that the opinion in this case will not be issued until late June.
CNN has not independently verified the validity of the paper. Politico claims to have verified the draught. A representative for the Supreme Court refused to respond to CNN.
The draught states that the court would reverse Roe v. Wade’s establishment of a federal constitutional right to abortion. The judgement would be the most significant abortion decision in decades, reshaping the landscape of women’s reproductive health in the United States.
Five justices look to be voting to overturn Roe. Chief Justice John Roberts did not intend to overturn Roe v. Wade altogether, sources told CNN, which means he would have dissented from a portion of Alito’s draught decision, possibly with the court’s three liberals.
That would leave Alito and Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett as the five conservative justices who would make up the majority overturning Roe.
Roberts, CNN has heard, is prepared to uphold a Mississippi statute that prohibits abortion after 15 weeks of pregnancy. Under existing legislation, the government is prohibited from interfering with a woman’s decision to terminate a pregnancy before about 23 weeks, the point at which a baby may survive outside the womb.
A mainly solemn gathering gathered Monday evening outside the Supreme Court building, as individuals gathered to comfort one another and deliberate on what to do next.
The audience started chanting at one point, “Hey, hey, ho, ho, Samuel Alito has got to go.” “We will not return.” “When abortion rights are threatened, what are we to do except stand up and fight back?” “Assemble the courts.”
Politico’s publication of the document violates the high court’s confidentiality rules. The interior discussions of the justices as opinions are crafted and voted are some of the most carefully guarded secrets in Washington.
“This is truly devastating news for the Supreme Court as an institution,” said Steve Vladeck, CNN Supreme Court expert and professor of law at the University of Texas at Austin. “Not only is the outcome it portends — the overturning of Roe and Casey — a shock to our constitutional politics, but we have never had a leak remotely similar from inside the Court, in which we are not only hearing the outcome, but also seeing the draught majority decision in advance. It’s difficult to imagine that the former does not assist to explain the later, but this is a double earthquake.”
Dobbs v. Jackson is the case at hand. It is an appeal of Mississippi’s 15-week abortion prohibition, and oral arguments were held on December 1. A final opinion in the matter is anticipated to be issued later this spring or early summer.
Alito says in the draught judgement that Roe “must be overturned.”
“The Constitution has no mention to abortion, and no fundamental clause implicitly protects such a right,” Alito stated. He said that Roe was “egregiously erroneous from the outset” and its logic was “exceptionally poor, with negative implications.”
“It is past time to obey the Constitution and return the abortion debate to the people’s representatives,” he continued.
“That is precisely what the Constitution and the rule of law need,” he said in the draught.
Almost half of the states have either passed or will adopt legislation prohibiting abortion, while others have established severe regulations governing the operation.
On December 1, oral arguments in the case were heard.
By the end of that week, under normal circumstances, the justices would have convened in their secret conference to take a preliminary vote on the matter. They would have discussed the matter in ascending order of seniority around the table. Roberts would have been the first to go, followed by Barrett.
Following that first tally, Roberts would assign the majority opinion if he was in the majority. Otherwise, the obligation would have been assumed by the most senior justice. Following that, draught views would be circulated between the chambers. Historically, justices have modified their votes, and sometimes, a majority judgement becomes a dissent.
A Roe reversal would put abortion policy in the hands of individual states, resulting in a patchwork system in which the procedure would remain widely accessible in Democratic-led states while Republican-led ones would impose severe restrictions or outright prohibitions.