By Mark Sherman and Zeke Miller
A draft opinion suggests the U.S. Supreme Court could be poised to overturn the landmark 1973 Roe v. Wade case that legalized abortion nationwide, according to a Politico report.
A decision to overrule Roe would lead to abortion bans in roughly half the states and could have huge ramifications for this year's elections. But it's unclear if the draft represents the court’s final word on the matter — opinions often change in ways big and small in the drafting process.
President Joe Biden said Tuesday that the “basic fairness and the stability of our law demand” that the court not overturn Roe. While emphasizing that he couldn’t speak to the authenticity of the draft, Biden said his administration is preparing for all eventualities for when the court ultimate rules and that a decision overturning Roe would raise the stakes for voters in November’s heated midterm elections.
“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,” Biden said. “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.”
Whatever the outcome, the Politico report late Monday represented an extremely rare breach of the court’s secretive deliberation process, and on a case of surpassing importance.
“Roe was egregiously wrong from the start,” the draft opinion states. It was signed by Justice Samuel Alito, a member of the court’s 6-3 conservative majority who was appointed by former President George W. Bush.
The document was labeled a “1st Draft” of the “Opinion of the Court” in a case challenging Mississippi’s ban on abortion after 15 weeks, a case known as Dobbs v. Jackson Women’s Health Organization.
The court is expected to rule on the case before its term ends in late June or early July.
The draft opinion in effect states there is no constitutional right to abortion services and would allow individual states to more heavily regulate or outright ban the procedure.
“We hold that Roe and Casey must be overruled,” it states, referencing the 1992 case Planned Parenthood v. Casey that affirmed Roe’s finding of a constitutional right to abortion services but allowed states to place some constraints on the practice. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
A Supreme Court spokeswoman said the court had no comment, and The Associated Press could not immediately confirm the authenticity of the draft Politico posted, which dates from February.
Politico said only that it received “a copy of the draft opinion from a person familiar with the court’s proceedings in the Mississippi case along with other details supporting the authenticity of the document.”
The draft opinion strongly suggests that when the justices met in private shortly after arguments in the case on Dec. 1, at least five voted to overrule Roe and Casey, and Alito was assigned the task of writing the court's majority opinion.
Votes and opinions in a case aren't final until a decision is announced or, in a change wrought by the coronavirus pandemic, posted on the court's website.
The report comes amid a legislative push to restrict abortion in several Republican-led states — Oklahoma being the most recent — even before the court issues its decision. Critics of those measures have said low-income and minority women will disproportionately bear the burden of the new restrictions.
The leak jumpstarted the intense political reverberations that the high court’s ultimate decision was expected to have in the midterm election year. Already, politicians on both sides of the aisle were seizing on the report to fundraise and energize their supporters on either side of the hot-button issue.
An AP-NORC poll in December found that Democrats increasingly see protecting abortion rights as a high priority for the government.
Other polling shows relatively few Americans want to see Roe overturned. In 2020, AP VoteCast found that 69% of voters in the presidential election said the Supreme Court should leave the Roe v. Wade decision as is; just 29% said the court should overturn the decision. In general, AP-NORC polling finds a majority of the public favors abortion being legal in most or all cases.
Still, when asked about abortion policy generally, Americans have nuanced attitudes on the issue, and many don’t think that abortion should be possible after the first trimester or that women should be able to obtain a legal abortion for any reason.
Alito, in the draft, said the court can't predict how the public might react and shouldn't try. “We cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work,” Alito wrote in the draft opinion, according to Politico.
People on both sides of the issue quickly gathered outside the Supreme Court waving signs and chanting on a balmy spring night, following the release of the Politico report.
Reaction was swift from elected officials in Congress and across the country.
In a joint statement from Congress' top two Democrats, House Speaker Nancy Pelosi and Senate Majority Leader Chuck Schumer said, “If the report is accurate, the Supreme Court is poised to inflict the greatest restriction of rights in the past fifty years — not just on women but on all Americans.”
New York Gov. Kathy Hochul, also a Democrat, said people seeking abortions could head to New York. “For anyone who needs access to care, our state will welcome you with open arms. Abortion will always be safe & accessible in New York,” Hochul said in a tweet.
Mississippi Attorney General Lynn Fitch said in a statement, “We will let the Supreme Court speak for itself and wait for the Court’s official opinion.” But local officials were praising the draft.
“This puts the decision making back into the hands of the states, which is where it should have always been,” said Mississippi state Rep. Becky Currie.
Congress could act, too, though a bill that would write Roe's protections into federal law stalled in the Senate after passing the House last year with only Democratic votes.
At Supreme Court arguments in December, all six conservative justices signaled that they would uphold the Mississippi law, and five asked questions that suggested that overruling Roe and Casey was a possibility.
Only Chief Justice John Roberts seemed prepared to take the smaller step of upholding the 15-week ban, though that too would be a significant weakening of abortion rights.
Until now, the court has allowed states to regulate but not ban abortion before the point of viability, around 24 weeks.
The court's three liberal justices seemed likely to be in dissent.
It's impossible to know what efforts are taking place behind the scenes to influence any justice's vote. If Roberts is inclined to allow Roe to survive, he need only pick off one other conservative vote to deprive the court of a majority to overrule the abortion landmark.
Twenty-six states are certain or likely to ban abortion if Roe v. Wade is overturned, according to the pro-abortion rights think tank the Guttmacher Institute. Of those, 22 states already have total or near-total bans on the books that are currently blocked by Roe, aside from Texas. The state's law banning it after six weeks has already been allowed to go into effect by the Supreme Court due to its unusual civil enforcement structure. Four more states are considered likely to quickly pass bans if Roe is overturned.
Sixteen states and the District of Columbia, meanwhile, have protected access to abortion in state law.
This year, anticipating a decision overturning or gutting Roe, eight conservative states have already moved to restrict abortion rights. Oklahoma, for example, passed several bills in recent weeks, including one that goes into effect this summer making it a felony to perform an abortion. Like many anti-abortion bills passed in GOP-led states this year, it does not have exceptions for rape or incest, only to save the life of the mother.
Eight Democratic-leaning states protected or expanded access to the procedure, including California, which has passed legislation making the procedure less expensive and is considering other bills to make itself an “abortion sanctuary” if Roe is overturned.
The draft looked legitimate to some followers of the court. Veteran Supreme Court lawyer Neal Katyal, who worked as a clerk to Justice Stephen Breyer and therefore has been in a position to see drafts, wrote on Twitter: “There are lots of signals the opinion is legit. The length and depth of analysis, would be very hard to fake. It says it is written by Alito and definitely sounds like him.”
Associated Press writers Jessica Gresko in Washington and Lindsay Whitehurst in Salt Lake City contributed to this report.
This story was updated Tuesday, May 3, 2022 at 10:00 a.m. ET.