The draft was circulated in early February, according to Politico. The final opinion has not been released and voices and language may be changed before the statements are formally released. The opinion in this case is not expected to be published until late June.
According to the draft, the court would overturn Roe v. Wade’s possession of a federal constitutional right to an abortion. The statement would be the most consistent abortion decision in decades and transform the landscape of women’s reproductive health in America.
However, Roberts is willing to uphold the Mississippi law, which will ban abortion by 15 weeks of pregnancy, CNN has learned. Under current law, the government cannot interfere in a woman’s choice to terminate a pregnancy until about 23 weeks when a fetus can live outside the womb.
At one point, the audience began to sing, “Hey, hey, ho, ho, Samuel Alito’s musta go.” “We will not go back.” “Abortion rights are under attack, what do we do, stand up and fight back.” “Pack the courts.”
Politico’s publication of the draft is without precedent by the High Court’s standards of secrecy. The internal deliberations among the judges, while opinions are drawn up and votes are decided, are among the most present details in Washington.
“This news is simply astonishing to the Supreme Court as an institution,” said Steve Vladeck, CNN’s Supreme Court analyst and professor at the University of Texas School of Law. “It’s not just the result that warns – the overriding of Roe and Casey – a shock wave to our constitutional policy, but we have never seen a remote leak like this from inside the Court, where we not only hear what the result will be, but we see the draft majority agreement in advance. It is hard to believe that the former does not help to explain the latter, but it is an earthquake in both respects.
The case in question is Dobbs v. Jackson. It is a challenge to Mississippi’s 15-week ban on abortion, and oral arguments were heard on Dec. 1. The release of a final statement on the case is expected later in the spring or early summer.
In the draft opinion, Alito writes that Roe “must be ignored.”
“The Constitution does not refer to abortion, and no such right is implicitly protected by any constitutional provision,” Alito wrote. He said Roe was “extremely wrong from the start” and that its reasoning was “unusually weak and the decision has had detrimental consequences.”
He added: “It is time to take account of the Constitution and return the issue of abortion to the representatives of the people.”
“That is what the constitution and the rule of law require,” he said, according to the draft.
Already almost half of the states have or will adopt laws banning abortion, while others have adopted strict measures regulating the procedure.
Oral arguments in the case were held on December 1st.
During normal proceedings, the judges would have met at the end of that week for their private conference to take a preliminary vote on the matter. They would have walked around the table after seniority and discussed their position on the matter. Roberts would have gone first, with Barrett last.
After the first statement, if Roberts was in the majority, he would assign the majority opinion. Otherwise, the Supreme Court judge would have taken that responsibility. Thereafter, draft opinions would go between the chambers. In the past, judges have changed their voices, and sometimes a majority opinion eventually becomes a dissent.
A reversal of Roe would leave abortion policy to individual states and would likely produce a patchwork system where the procedure would largely remain available in democratically-led states, while Republican-led states would cross extreme borders or directly ban it.
The Dobbs case was perhaps the most anticipated case during the court period, and most court observers expected that the Conservative majority would likely screw down or directly overturn Roe’s position. By oral argument, Roberts was the only one of the six Republican nominees to signal interest in exploring a narrower opinion that would have upheld Mississippi’s law but retained some protections for abortion rights.
Because it is one of the court’s most demanding and controversial decisions, the expectation was that the opinion would be among the last that the court released at the end of its term of office at the end of June.
Roe is the law of the land until the court formally delivers its opinion.
Decades long project with conservative legal moment
To overthrow Roe would be the culmination of a decades-long project in the conservative legal moment.
Former President Donald Trump promised, when he ran for the White House in 2016, to appoint Supreme Court justices who would overthrow Roe “automatically.” His nominee Kavanaugh replaced Judge Anthony Kennedy, who sided with the Liberal judges in previous abortion rights cases. Barrett replaced the late Judge Ruth Bader Ginsburg, a Democratic nominee and advocate for abortion rights, who died weeks before the 2020 election.
Roe v. Wade was hailed by supporters of abortion law and long criticized by critics, and in 1973 Roe v. Wade decided to establish a constitutional right to abortion before fetal viability, as most experts say, now happens around 23-24 weeks of the pregnancy. The decision was confirmed in 1992 in Planned Parenthood v. Casey. A majority of the court in that case replaced Roe’s framework with a new standard to determine the validity of laws restricting abortions. The court said a regulation could not impose an “unnecessary burden” on the right to abortion, which is defined as a “significant obstacle in the way of a woman seeking an abortion before the fetus achieves viability.”
According to a CNN poll conducted by the SSRS in January, most Americans are opposed to overthrowing Roe, with a majority saying that if the decision was abandoned, they would want their own state to move toward more permissible abortion laws.
Only 30% of Americans say they would like to see the Supreme Court completely overturn its Roe vs. Wade decision, with 69% against – a conclusion that is largely in line with both other recent polls and with historical trends.
Stare decisis and overturned precedent
Alito also refers in the statement to the fact that Roe has been in the books for about 50 years. Although the court will not overturn the precedent, Alito says it should do so. He said the notion of “stare decisis” does not “force infinite adherence to Roe’s abuse of justice.”
He said that instead of “creating a national solution to the abortion issue”, Roe and a subsequent decision “ignited the debate and deepened the division.”
“The inevitable conclusion,” Alito wrote according to the draft, “is that the right to an abortion is not deeply rooted in the nation’s history and traditions.”
He also said the decision was on a “collision course” with the constitution “from the day it was decided.”
Alito also pushed back on the idea that if the court were to overturn Roe, it could get the court to overturn other cases such as. Obergefell v. Hodges, who maintained the right to same-sex marriage. He said that what “sharply separates” Roe from other cases is that “abortion destroys” potential life.
The court, Alito added, was unable to end the debate on abortion nearly half a century ago when Roe came down, so it should leave the matter to the states.
“This court can not create a permanent solution to an evil national dispute by simply dictating a settlement and asking the people to move on,” he wrote.
If Roe was overthrown or fundamentally weakened, 21 states already have laws or constitutional amendments in place that would make them confident of trying to ban abortion as soon as possible, according to the Guttmacher Institute, which advocates abortion rights.
Five more states are likely to ban abortion as soon as possible without federal protection. As of April 2022, 536 abortion restrictions have been introduced in 42 states.
Democrats furious, call to end filibuster
“Senate control has never been more important: it’s time to end the filibuster, pass the Women’s Health Protection Act, and fight like hell to make sure all Ohio families are free to make these critical decisions without interference from politicians in Columbus or Washington, “the Ohio Rep. Tim Ryan, who is favored to win his Democratic primary on Tuesday.
The push from the Democratic candidates and others is likely to fail unless some of the sitting senators change their minds. In the 50-50 Senate, Democrats need every vote to remove House rules that require 60 votes to advance most of the legislation. And the democratic Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona have repeatedly pledged to protect the filibuster, which sets a 60-vote threshold that requires cooperation between two parties to pass most of the legislation.
In February, Manchin also joined with Republicans in the Senate to block the Women’s Health Protection Act, which was passed by the House and aimed at preserving access to abortion.
In a statement, Speaker Nancy Pelosi and Senate Majority Leader Chuck Schumer said overthrowing Roe would be “the biggest restriction of rights in the last fifty years – not just for women, but for all Americans.”
“Several of these conservative judges, who are in no way accountable to the American people, have lied to the US Senate, tore up the Constitution and tarnished both the precedent and the reputation of the Supreme Court,” the leaders said.
This story has been updated with further details.
CNN’s Alex Rogers, Manu Raju and Eva McKend contributed to this report.