A majority of Supreme Court justices have reportedly agreed to vote for a draft judicial opinion that would strike down Roe v. Wade, a ruling that would overturn a landmark decision protecting abortion rights and usher in a new era of state-level anti-choice laws.
Politico has obtained an initial draft majority opinion — penned by Supreme Court Justice Samuel Alito — that reportedly has the support of four other conservative justices. Amy Coney Barrett, Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh all allegedly voted in concurrence with Alito after oral arguments in December. Together, the five justices have the majority needed to overturn Roe, which since 1973 has been the principal federal bulwark protecting abortion rights. (Were Kavanaugh to indeed side with the majority, it would go against Sen. Susan Collins’ (R-Maine) 2018 claim that Kavanaugh would honor the precedent set by Roe.)
The document is a draft and the votes are not final. As Politico notes: “Justices can and sometimes do change their votes as draft opinions circulate and major decisions can be subject to multiple drafts and vote-trading.” The court’s final decision is expected to be officially published by summer.
But the 98-page draft is unequivocally clear that the Supreme Court should not have made the broad ruling protecting abortion rights. “Roe was egregiously wrong from the start,” Alito writes. “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.”
Republican lawmakers across the country have passed — or are preparing to pass — laws that criminalize, invalidate, or radically limit a woman’s right to choose whether or not to carry a pregnancy to term. Those laws for decades have been struck down in the federal judiciary, but with Roe gone, abortion rights and access for millions of women in the United States would quickly be sharply curtailed, if not eliminated altogether.
At the center of the upcoming ruling is Dobbs v. Jackson Women’s Health Organization, a Mississippi court case that challenges the state’s Gestational Age Act, which seeks to ban most abortions after 15 weeks of pregnancy with exceptions granted for medical emergencies or severe fetal abnormalities — but controversially excludes incest rape. According to CNN, sources indicate that while Chief Justice John Roberts is willing to uphold the Mississippi law, he has no desire to overturn Roe.
In addition to Mississippi, overturning Roe has the potential to completely eliminate abortion access in numerous conservative-leaning states — many of which have embraced the ideology of states’ rights for over a century to uphold a litany of discriminatory and religiously-motivated legislative practices, ranging from slavery and segregation to the prohibition of same-sex marriage. In 13 states — including Idaho, Kentucky, Louisiana, Missouri, Tennessee and Texas — so-called “trigger laws” enacted pre-Roe would allow ultra-restrictive abortion legislation to resume automatically. The trigger law states of Arkansas, South Dakota, Utah and Wyoming all have near-total abortion bans on the books, meaning abortion would immediately become illegal in these locations in the event of a Roe overturn. (While not trigger law states, Alabama, Arizona, Michigan, West Virginia and Wisconsin also maintain near-total abortion bans — most of which are currently on pause by court order.)
Throughout the draft ruling, Alito claims “abortion is not deeply rooted in the Nation’s history and traditions” — an assertion he disturbingly applies to other landmark Supreme Court decisions such as Loving v. Virginia, which struck down laws banning interracial marriage; Lawrence v. Texas, which decriminalized private and consensual sexual acts; and Obergefell v. Hodges, which legalized same-sex marriage. However, unlike these cases, Alito writes, Roe and its companion ruling Planned Parenthood v. Casey, “[appeal] to a broader right to autonomy” that is not conferred under the Constitution. Alito’s words echo a statement delivered by Mississippi Solicitor General Scott Stewart during oral arguments last December: “When an issue affects everyone and when the Constitution does not take sides on it, it belongs to the people.”
Politicians quickly took to social media to share their reactions to the leaked draft Monday evening.
“If tonight’s news is true, Michigan’s 1931 state law banning abortion would snap back into effect, making any abortion illegal in our state — even if the mom will die, or if she was raped by a family member,” wrote Congresswoman Elissa Slotkin (D-Mich.) on Twitter. “No exceptions.” Sen. Bernie Sanders (D-Vt.) also weighed in, using the threat of Roe‘s repeal to speak out against the Senate filibuster: “Congress must pass legislation that codifies Roe v. Wade as the law of the land in this country NOW. And if there aren’t 60 votes in the Senate to do it, and there are not, we must end the filibuster to pass it with 50 votes.”
Republicans remained mostly silent on the issue — but the few who did issue statements were predictably gleeful at the prospect of Roe‘s possible demise. “I will say, if this is the Court’s opinion, it’s a heck of an opinion,” wrote Sen. Josh Hawley (R-Mo.). “Voluminously researched, tightly argued, and morally powerful.” Sen. Tom Cotton (R-Ark.) was simultaneously enraged and delighted by the draft decision, writing in the same tweet that the Department of Justice “must get to the bottom of this leak immediately” and that he prays the Supreme Court would “[allow] the states to once again protect unborn life.” Writing that the Supreme Court is “not a political body,” Sen. Mike Lee (R-Utah) took a more measured approach, saying he hopes the “well-written and well-reasoned draft in fact reflects the majority view of the Court.”