The Supreme Court is poised to strike down a landmark 1973 decision of Roe vs. Wade that protected abortion at the federal level, according to a draft majority opinion published by Politico late Monday night.
The draft majority opinion shows that five justices — conservative Justice Samuel Alito who penned the initial draft opinion in February along with Justices Amy Coney Barrett, Neil Gorsuch, Clarance Thomas, and Brett Kavanaugh voted to overturn the precedent set by Roe and hand the legality of abortion back to state governments. The 98-page opinion, featuring a 31-page appendix of historic state abortion law is marked as the first draft, pending the final ruling on a case heard late last year regarding a challenge to Roe concerning a Mississippi law that bans abortions after 15 weeks.
Alito writes in the opinion that Roe was “egregiously wrong and deeply damaging,” and the 1992 decision in the case Planned Parenthood v. Casey, a 1992 decision that limited but didn’t eliminate abortion rights, “enflamed debate and deepened divisions” from the 1992 court’s error.
“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 issue, Roe and Casey have enflamed debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” the opinion states
“We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision,” the opinion adds.
The justices’ votes are constantly fluid until the point of an opinion’s publication, and the first draft that has leaked might have changed since February. A final decision from the high court in the Mississippi case challenging the landmark 1973 abortion ruling could come in late June or early July.
Four of the conservative Justice voted with Alito in December, and it is reported that as of now this line-up remains unchanged. The three liberal justices — Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan — are currently working on one or more dissents, according to the Politico report. Meanwhile, Chief Justice John Roberts’ vote or whether he would join an already written opinion or draft his own is unknown at the time of the leak.
No draft decision, according to Politico, in the modern history of the high court has ever been disclosed publicly as the case is still pending. The rare breach of the Supreme Court secrecy and the tradition around its tradition regarding Justices’ deliberations is a first for one of the remaining Washington agencies known for being prone to such a leak — especially a full draft opinion. According to Politico, the outlet received a copy of the draft opinion from a person familiar with the court’s proceedings in the Mississippi case heard in early December 2021 as well as other details supporting the authenticity of the leaked document.
Lawmakers and Advocacy groups on both sides of the aisles reacted to the news of the leaked draft opinion.
Marjorie Dannenfelser, president of the Susan B. Anthony List, a Pro-Life advocacy group said the organization would “wholeheartedly applaud the decision” if the reported leak becomes the final opinion of the court.
“The American people have the right to act through their elected officials to debate and enact laws that protect unborn children and honor women,” Dannenfelser said. “If Roe is indeed overturned, our job will be to build consensus for the strongest protections possible for unborn children and women in every legislature.”
Congressional Democrats expressed outrage over details of the opinion showing the Supreme Court is poised to overturn Roe, with many now rehashing old failed tactics as means to protect abortion rights. Sen. Bernie Sanders (I-VT) called for the end of the filibuster so they are enough votes to codify the law through legislation.
Meanwhile, Republicans focused their attention on the leaked 98-page document, an extraordinary occurrence for the highly guarded institution, infuriated calling it a breach designed to intimidate the court along with the prosecution of the person responsible to be caught and prosecuted.
Sen. Ted Cruz (R-TX) called for an FBI investigation into the leak, stating the person responsible “should be prosecuted and should go to jail for a very long time.”
“It is utterly stunning that anyone at the court would leak a draft opinion. In over 200 years of our nation’s history, this has never happened and I’m appalled,” Cruz told reporters Tuesday. “This is the most egregious breach of trust at the Supreme Court that has ever happened. Presumably, some left-wing law clerk angry at the direction the court is going decided to betray his or her obligation, the trust that clerk owed to the justice and to the court.”
In a statement, Senate Minority Leader Mitch McConnell (R-KY) described the leak as “lawless action” and “another escalation in the radical left’s ongoing campaign to bully and intimidate federal judges and substitute mob rule for the rule of law.”
McConnell called for an immediate investigation, saying the Justice Department “must pursue criminal charges if applicable.”
Hundreds of pro-abortion rights demonstrators immediately flocked to the Supreme Court in the hours after news broke of Politico reporting on the initial draft leak. The bombshell revelation is looking to change the dynamics of this midterms as Democrats change course to sway voters over this issues as the main reason to vote in favor of their partyAbortionJustice Clarence ThomasJustice Samuel AlitoPlanned ParenthoodRoe vs. WadeSen. Bernie SandersSen. Ted CruzSenate Minority Leader Mitch McConnellSupreme CourtSusan B. Anthony List
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