Declaring that the right to abortion is “not deeply rooted in the nation’s history and traditions”, the US Supreme Court appeared set to overturn the historic Roe v Wade verdict of 1973 that legalised abortion nationwide, according to a leaked draft of the majority opinion reported by the news site Politico.
The draft majority opinion, in response to an ongoing case on a restrictive Mississippi law that banned abortion after 15 weeks, was written by Justice Samuel Alito. It is reportedly backed by four other conservative judges, all nominated by Republicans, while three judges nominated by Democratic administration – Stephen Breyer, Sonia Sotomayor and Elena Kagan -are expected to dissent from the opinion.
The stand that Chief Justice John Roberts – a Republican nominee who in the past has adopted a more centrist position than his other conservative colleagues – will take was not clear.
Even as the SC confirmed the authenticity of the document, the draft prompted a strong response by President Joe Biden, who warned against overturning Roe v Wade and said women’s right to choose is “fundamental”.
In a statement, the court said justices often circulate draft opinions as routine and essential part of court’s confidential deliberative work. “Although the document described in yesterday’s documents is authentic, it does not represent a decision by the court and a final decision by any member on the issues in the case,” it said.
Chief Justice John Roberts termed the leak a “singular and egregious breach of trust”, claimed that the “betrayal of confidences” would not affect the integrity of the court’s operations, and announced an investigation into the source of the leak.
Drafts, according to close observers of the court, are often circulated to serve as the basis for negotiations and consultations among judges. But in this case, the leaked draft both provides a sense of the arguments that may be used to justify the rollback of Roe v Wade and the balance of power in the court which will enable the decision.
“Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences, the draft said, according to Politico. “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.”
In its 1973 Roe v Wade verdict, the SC had the held that women had a fundamental right to whether to terminate her pregnancy and located it within the right to liberty and privacy. But it had said that the right was not absolute and held that it must be balanced against other interests such as protecting the mother’s health and life of the foetus.
The court created a framework where during the first trimester the state could not impose any restriction on abortions. In the second trimester, it allowed states to impose narrow restrictions but only to protect the mother’s health. In the third trimester — which the court saw as the stage when the foetus becomes viable — the court allowed for legal prohibition of abortions.
In a subsequent case, Planned Parenthood v Casey, in 1992, the court upheld the right to abortion, but abandoned the trimester framework and prioritised the idea of foetal viability.
“We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision,” the leaked draft said.
“We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision. We can only do our job, which is to interpret the law, apply longstanding principles of stare decisis, and decide this case accordingly.
“We therefore hold that the Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.”
This is the first time that an opinion of the court on a pending case has been leaked prior to the formal verdict. While it may change, the draft opinion is in line with many observers expected given the composition of the court.
The leak of the draft majority opinion also comes at a time when American politics is deeply polarised with Republicans backing restrictions on abortion, which Democrats have framed as the greatest rollback of rights in America in the last 50 years.
If announced in the current form, the draft opinion is expected to give formal constitutional cover to a raft of laws that restrict abortions across Republican-controlled legislatures and states, particularly in the south and the west of the country.
Expected to be delivered this summer, the verdict is also set to have an impact on mid-term elections this November, when all the seats in the House of Representatives and one-third of the seats of the Senate will be up for grabs.
In a statement on Tuesday, Biden said that his administration had strongly defended Roe v Wade in the court.
“I believe that a woman’s right to choose is fundamental, 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,” he said in a statement released hours after the report.
In the statement, he added that in response to states bringing in restrictive laws, he had already directed his office to prepare for a response to the “continued attack on abortion and reproductive rights”.
“We will be ready when any ruling is issued.”
Biden said if the court did overturn Roe, it would fall upon elected officials at all levels of government to protect the woman’s right to choose.
“And it will fall on voters to elect pro-choice officials this November. At the federal level, we will need more pro-choice Senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law.”
“If the report is accurate, the Supreme Court is poised to inflict the greatest restriction of rights in the past 50 years — not just on women but all Americans,” House Speaker Nancy Pelosi and Senate Majority leader Charles Schumer, both Democrats, said in a joint statement
Both pro and anti-abortion activists congregated at the Supreme Court to cheer and protest against the leaked draft on Monday evening.
