Leaked Draft Opinion Suggests SCOTUS is Set to Overturn Roe v. Wade

 


By Jessica Folker and Clara Geoghegan
LAW WEEK COLORADO

The U.S. Supreme Court appears poised to overturn Roe v. Wade, according to a leaked draft opinion in an abortion rights case confirmed to be real on Tuesday.

On Monday evening, Politico published a 98-page document that appeared to be a draft opinion in Dobbs v. Jackson Women’s Health Organization, a case that challenges a Mississippi law banning abortion after 15 weeks of pregnancy. The draft majority opinion authored by Justice Samuel Alito states that Roe v. Wade and Planned Parenthood v. Casey “must be overruled.” According to Politico, conservative Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett voted with Alito in favor of overturning the landmark abortion rights cases during a conference following oral arguments in the case in December.

The report sparked outcry and protests as well as speculation over whether the document was real and who was responsible for leaking it. The Supreme Court confirmed in a May 3 press release that the document was real while clarifying that it wasn’t the court’s final word on the case and that the circulation of draft opinions is a “routine and essential” part of the justices’ deliberative work.

 “Although the document described in yesterday’s reports is authentic, it does not represent a decision by the Court or the final position of any member on the issues in the case,” states the press release. 

In a statement, Chief Justice John Roberts called the leak an “egregious breach” of trust and an “affront” to the court, adding that he ordered an investigation into the source of the leak. “To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed,” Roberts said. “The work of the Court will not be affected in any way.”

In the draft opinion, Alito writes that the “inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions.” He also says that the court’s 1973 decision in Roe, which held that the Constitution protects a woman’s freedom to choose to have an abortion without excessive government interference, was “egregiously wrong from the start.” 

Rather than settle the abortion issue, Alito wrote, Roe and Casey have “enflamed debate and deepened division.” In its 1992 Casey decision, the court reaffirmed Roe and imposed a new “undue burden” standard to determine whether abortion restrictions are unconstitutional. Alito goes on to say it’s “time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” 

“We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey,” Alito writes near the end of the draft opinion. But the court got a preview of the reaction it can expect if its final opinion resembles the leaked draft. Protesters on both sides of the abortion debate gathered outside the Supreme Court on Tuesday and more demonstrations are expected in cities across the country. 

President Joe Biden said in a statement that “Roe has been the law of the land for almost fifty years, and basic fairness and the stability of our law demand that it not be overturned.” Biden added that his administration has been preparing to respond to the “continued attack on abortion and reproductive rights” and “will be ready when any ruling is issued.” 

Closer to home, Gov. Jared Polis responded to Politico’s report on Monday night. “While this is extremely disappointing news, representing a radical shift in American life away from individual freedom, in Colorado we will continue to fight for and respect the right to make decisions about your own body and medical health,” Polis said in a statement. In April, the governor signed the Reproductive Health Equity Act, which codifies the right to abortion and contraception in the state. 

Dobbs v. Jackson Women’s Health has been a closely watched case since the court agreed to hear it in May 2021. Since then, a number of states have passed laws restricting abortion access or enshrining it, with many ending up in federal courts

Lifting abortion access protections created by Roe v. Wade wouldn’t automatically ban all abortions in the U.S., but it would likely create a patchwork of states with legal abortions, abortion bans or significant restrictions in place. 

As one of the most well-known Supreme Court opinions among the American public, overturning Roe v. Wade could also put the court under increased scrutiny. Calls for Supreme Court reforms – like term limits, more transparency and additional justices – have increased recently as have accusations that the court is partisan. 

While the court emphasized that public backlash to the leaked draft won’t impact its final opinion, the official decision in Dobbs v. Jackson Women’s Health will be a landmark case. 

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