The Supreme Court appears ready to strike down the landmark Roe v. Wade decision, according to an initial draft majority opinion written by Justice Samuel Alito that was obtained by Politico.
It’s unclear if Alito’s draft represents the court’s final decision on the matter, since opinions often change in ways big and small during the drafting process but the leak of the document has triggered a political firestorm.
The opinion written by Alito would end the guarantee of federal constitutional protection of abortion rights that has been in force for a half-century and would instead allow each state to decide whether to permit, restrict or ban abortion if the Supreme Court majority concurs.
The draft opinion is a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights, as well as the subsequent 1992 decision – Planned Parenthood v. Casey – that largely maintained the right.
“Roe was egregiously wrong from the start,” Alito writes, expressing a radical viewpoint that might justify the erosion of other rights prior courts determined by the implied language of the nation’s charter.
“We hold that Roe and Casey must be overruled,” writes Alito. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
The opinion sparked an angry response from human rights advocates, who noted that this is the first time a right that was recognized by the Supreme Court is being curtailed.
Chief Justice John Roberts confirmed the authenticity of the leaked document, which is dated February 10, adding that, while it is legitimate, it is not yet a final decision although most observers expect Republican-appointed justices to join in support.
The five most conservative members of the court are Alito along with Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — who have each been expected to overturn Roe and rule that the Constitution does not protect a woman’s right to make her own choices.
Roberts directed the Marshal of the Court to launch an investigation into the unprecedented leak.
A full draft Supreme Court opinion has never been leaked in history, and there hasn’t been an advance leak of an outcome since 1986.
Only the justices themselves and their small cadre of law clerks would have access to such a document.
The closest similar example in memory came when somebody leaked, in 2012, that Chief Justice John Roberts had initially voted to strike down all of Obamacare, before changing his mind and voting to uphold the individual mandate.
A decision to overrule the longtime precedent that allows women to decide if and when to have children would lead to abortion bans in roughly half the states, a development that could have huge ramifications for this year’s elections.
President Joe Biden blasted the leaked draft, warning that a “whole range of rights” are in jeopardy if it is finalized by a majority of the justices, contending it reflects a “fundamental shift in American jurisprudence” that threatens “other basic rights” like privacy and marriage.
“If the court does overturn Roe, it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose,” said Biden, who called on voters to elect pro-choice leaders in November.
In states across the country, radical right-wing politicians have been pushing to criminalize women who choose to have an abortion as well as doctors who provide them.
“Access to safe and legal abortion is a human right. Over the past decade, especially since the election of neo-Nazi Donald Trump, we’ve seen drastic restrictions limit reproductive freedom in states leading up to this proposed Supreme Court opinion, which will overturn Roe v. Wade,” said Lisa McCormick, one of New Jersey’s leading progressives.
“This decision is the culmination of a radical right-wing effort to turn back time that has been years in the making,” said McCormick. “While it may not be final at this moment, the fight over reproductive rights has been escalating. We must mobilize to stop forced pregnancies, unwanted children, and the repeal of our human right to privacy.”
Rep. Alexandria Ocasio-Cortez warned that the Supreme Court “isn’t just coming for abortion” noting that the Supreme Court’s draft opinion explicitly criticizes Lawrence v. Texas (legalizing sodomy) and Obergefell v. Hodges (legalizing same-sex marriage).
In the document, Alito says that abortion, gay marriage, and privacy come from decisions that protect phony rights that are not “deeply rooted in history.”
“As we’ve warned, SCOTUS isn’t just coming for abortion — they’re coming for the right to privacy Roe rests on which includes gay marriage + civil rights,”
Ocasio-Cortez said House Democrats have seemingly forgotten about recent revelations about unethical conduct by Supreme Court Justice Clarence Thomas.
Liberals are rushing to harness the anger and energy of abortion rights supporters, who comprise 70 percent of Americans, while candidates across the spectrum are retooling their messaging that until now was expected to focus on economic issues such as inflation.
Democrats say the Republican attack on abortion access, birth control and women’s health care may dramatically escalate the stakes of the 2022 election, if they use this as an opportunity to remind voters how out of step Republicans are.