WASHINGTON –
A draft opinion suggests the US Supreme Court may be ready to overturn the remarkable Rowe v. Wade case in 1973, which legalized abortion across the country, according to a Politico report released Monday.
The decision to repeal Roe would lead to abortion bans in about half of the states and could have huge consequences for this year’s election. But it is not clear whether the draft is the court’s last word on the matter – opinions often change in large and small ways in the drafting process.
Whatever the outcome, the Politico report is an extremely rare violation of the secret process of deliberation of the court and in a case of extreme importance.
“Rowe has made a huge mistake from the beginning,” the draft statement said. It was signed by Judge Samuel Alito, a member of the Conservative majority 6-3 in the court appointed by former President George W. Bush.
The document was labeled the “first draft” of the Court’s Opinion in a case challenging Mississippi’s ban on abortion after 15 weeks, a case known as Dobbs v. Jackson’s Women’s Health Organization.
The court is expected to rule on the case before his term expires in late June or early July.
In practice, the draft opinion states that there is no constitutional right to abortion services and will allow individual states to regulate more strictly or to ban the procedure altogether.
“We believe that Roe and Casey should be repealed,” it said, citing Planned Parenthood v. Casey in 1992, which confirmed Roe’s finding of a constitutional right to abortion services but allowed states to place some restrictions on the practice. “It is time to listen to the constitution and return the issue of abortion to elected representatives.
A spokeswoman for the Supreme Court said the court had no comment and the Associated Press could not immediately confirm the authenticity of the published Politico draft, which dates back to February.
Politico said only that it had “received a copy of the draft opinion from a person familiar with the Mississippi court proceedings, along with other details supporting the authenticity of the document”.
The draft opinion strongly suggests that when the judges met in private shortly after a dispute over the case on December 1, at least five voted to repeal Rowe and Casey, and Alito was tasked with writing the opinion of the majority court.
The votes and opinions in the case are not final until a decision is announced or, as a result of a change caused by the coronavirus pandemic, is published on the court’s website.
The report comes amid a legislative push to limit abortions in several Republican-led states – Oklahoma is the latest – even before the court rules. Critics of these measures say low-income women will bear the disproportionate burden of the new restrictions.
The leak sparked an intense political response, which was expected to have a final ruling by the Supreme Court during the midterm election year. Politicians on both sides of the aisle have already used the report to raise funds and energize their supporters on both sides of the hotkey issue.
An AP-NORC poll in December found that Democrats increasingly see the protection of abortion rights as a high priority for the government.
Other opinion polls show that relatively few Americans want to see Roe repealed. In 2020, AP VoteCast found that 69% of voters in the presidential election said the Supreme Court should leave the Roe v. Wade ruling as it is; only 29% said the court should overturn the decision. Overall, the AP-NORC poll found that the majority of the public supports abortion being legal in most or all cases.
However, when asked about abortion policy in general, Americans have nuanced attitudes, and many do not believe that abortion should be possible after the first trimester or that women should be able to have a legal abortion for some reason.
Alito said in the draft that the court could not foresee how the public could react and should not try. “We cannot allow our decisions to be affected by any external influences, such as concerns about society’s reaction to our work,” Alito wrote in the draft opinion, according to Politico.
People on both sides quickly gathered in front of the Supreme Court, waving signs and chanting on a soft spring night after the Politico report was published.
The response was swift from elected officials in Congress and across the country.
In a joint statement by the two leading Democrats in Congress, House Speaker Nancy Pelosi and Senate Majority Leader Chuck Schumer said: not just on women, but on all Americans.
New York Governor Katie Hochul, also a Democrat, said abortion seekers could head to New York. “For anyone who needs access to care, our country will welcome you with open arms. “Abortion will always be safe and accessible in New York,” Hochul said in a tweet.
Mississippi Attorney General Lynn Fitch said in a statement: “We will leave the Supreme Court to speak alone and wait for the court’s official opinion. But local authorities praised the project.
“This puts decision-making back in the hands of the states, which it always should have been,” said Mississippi spokeswoman Becky Curry.
Congress could also act, although a bill that would enshrine Rowe’s defense in federal law stalled in the Senate after it passed the House last year with only Democrat votes.
In the Supreme Court’s arguments in December, all six conservative judges signaled their support for the Mississippi law, and five asked questions that suggested the repeal of Rowe and Casey was possible.
Only Chief Justice John Roberts seemed ready to take the smaller step of upholding the 15-week ban, although that would also be a significant weakening of abortion rights.
Until now, the court has allowed states to regulate, but not ban, abortions before the point of viability, about 24 weeks.
The three liberal judges of the court seem to disagree.
It is impossible to know what efforts are being made behind the scenes to influence the vote on justice. If Roberts is willing to allow Rowe to survive, he only has to choose another conservative vote to deprive the court of a majority to overturn the landmark of abortion.
Twenty-six states are certain or likely to ban abortion if Rowe v. Wade is repealed, according to the Gutmacher Institute’s abortion rights think tank. Of these, 22 states already have a total or near-complete ban on books currently blocked by Roe, except Texas. The state law, which bans it after six weeks, is now allowed to come into force by the Supreme Court due to its unusual structure of civil law enforcement. Four more states are thought to be quick to adopt bans if Roe is lifted.
Meanwhile, sixteen states and the District of Columbia have protected access to abortion in state law.
This year, pending a decision to repeal or gut Rowe, eight conservative states have already tried to restrict abortion rights. Oklahoma, for example, has passed several bills in recent weeks, including one that went into effect this summer, making it a crime to have an abortion. Like many anti-abortion bills passed in Republican-led states this year, there are no exceptions to rape or incest just to save a mother’s life.
Eight Democrats have defended or expanded access to the procedure, including California, which has passed legislation that makes the procedure cheaper and is considering other bills to become an “abortion haven” if Rowe is repealed.
The draft seemed legitimate to some followers of the court. Veteran attorney-at-law Supreme Court Justice Neil Katial, who worked as an employee of Judge Stephen Brier and was therefore able to see drafts, wrote on Twitter: “There are many signals that the opinion is legal. The length and depth of the analysis would be very difficult to falsify. It says it was written by Alito and it definitely sounds like it.
___
Associated Press writers Jessica Gresco of Washington and Lindsay Whitehurst of Salt Lake City contributed to the report.
Add Comment