A majority of the Supreme Court is prepared to overturn the right to abortion established nearly 50 years ago in Roe v. Wade, according to a leaked draft of the opinion published Monday by Politico.
That conclusion seemed a possibility in December when the court considered a Mississippi law that would ban abortions after 15 weeks.
But the disclosure Monday by Politico of a draft opinion that it said was circulated by Justice Samuel A. Alito Jr. was an extreme breach of modern Supreme Court protocol. The report said that after oral arguments Alito, along with Justice Clarence Thomas and all of three of President Donald Trump’s nominees to the court — Justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — voted to overturn the precedent.
“If the report is accurate, the Supreme Court is poised to inflict the greatest restriction of rights in the past fifty years — not just on women but on all Americans,” read a joint statement from Senate Majority Leader Charles E. Schumer (D-N.Y.) and House Speaker Nancy Pelosi (D-Calif.). “… 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.”
It could be months before it is clear whether the document will serve as the basis for the court’s decision or if it was just an opening round of negotiations. Drafts of opinions are circulated to try to convince other justices and to serve as a document they can endorse. Language can be strengthened or toned down.
In the draft opinion published by Politico, Alito said that Roe was wrongly decided and that it had inflamed rather than united public opinion over the contentious issue.
“We hold that Roe and Casey must be overruled,” said the document, which Politico said was labeled a draft “Opinion of the Court.” Planned Parenthood v. Casey, decided in 1992, affirmed the abortion right established in Roe. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
In the draft, Alito reportedly discounts concerns about overruling long-standing precedent. The legal principle known as stare decisis “does not compel unending adherence” to what he writes is “Roe’s abuse of judicial authority.”
The draft says Roe was “egregiously wrong from the start. 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.”
The draft asserts that overturning Roe would not jeopardize other rights, such as the right to contraception, protection of homosexual sex and same-sex marriage.
“We emphasize that our decision concerns the constitutional right to abortion and no other right,” Alito writes. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” (WAPO)