The Supreme Court decided to overturn Roe v. Wade and allow states to ban abortion, according to a written draft of the judges’ decision obtained by Politico.
Other publications have not confirmed the authenticity of the project, and Supreme Court justices sometimes change their minds when writing opinions. But many legal observers view the project as genuine and assume that abortion policy in the United States is about to be transformed.
Among the reasons: The tone and style of the project matches those of previous court decisions. The result also matches an outcome that seemed plausible based on the judges’ questions during closing arguments in December. After Politico published their story last night, the Supreme Court declined to comment.
If the court overturns Roe, many conservative states will likely ban almost all abortions. One estimate suggests that the number of abortions in the United States would decrease by about 14%, explain Claire Cain Miller and Margot Sanger-Katz of The Times.
Today’s bulletin reviews the case and its implications.
All of the court-appointed Republicans other than Chief Justice John Roberts voted to unseat Roe, Politico reported: Samuel Alito (who drafted the draft), Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas. The three Democratic appointees will obviously be dissenting. Roberts had not made up his mind at the time of drafting, but his vote is not crucial.
The biggest caveat is that judges sometimes change their minds as they read and circulate draft opinions among themselves. In 2012, for example, Roberts changed her stance on whether to cancel Obamacare, while CNN’s Joan Biskupic reported later.
But such a change seems unlikely now. Because of the draft leak — a leak with no modern precedent to the court — any judge who switched sides would become notorious as the curator who saved Roe.
This Times story reviews competing theories about who leaked the draft. Some observers believe it could have been a conservative judge or clerk, to lock in the majority. Others think it might have been a liberal judge or clerk, to undermine the court’s reputation as a noble body above the partisan fray; the leak makes the court look like other Washington institutions.
“We feel that Roe and Casey should be canceled,” Alito wrote in the draft. “It is time to respect the Constitution and to return the question of abortion to the elected representatives of the people.
The bill says the Constitution is silent on abortion and nothing in its text or structure supports a right to abortion. Roe, the project continues, is so patently wrong that it does not deserve precedent; the correct approach is to refer the matter to the States.
The assertive and sometimes cutting tone of the draft bears a strong resemblance to other major Alito opinions, note Michael Shear and Adam Liptak of The Times.
Politico apparently didn’t get a draft of the dissent. But during oral arguments, the liberal justices argued that such a drastic change coming so soon after a change in the court’s makeup would undermine its claims of impartiality.
“Will this institution survive the stench it creates in the public perception that the Constitution and its reading are just political acts? asked Judge Sonia Sotomayor. “If people really believe that everything is political, how are we going to survive?”
How we got here
Roe has been law for nearly 50 years, and Democrats — who almost universally support him — have won five of the last eight presidential elections. How, then, did an anti-Roe majority on the Supreme Court come about?
Circumstance plays a role. Donald Trump was able to appoint three judges, either due to retirement or death – the most appointments in a single term in decades. But two specific rulings also loom over Roe’s potential repeal:
In 2016, after the death of Justice Antonin Scalia, Mitch McConnell and other Senate Republicans refused to allow Barack Obama to name a replacement during his final year in office. It was an aggressive power grab with little precedent, and it worked, after Trump won the election that year.
In 2013 and 2014, Justice Ruth Bader Ginsburg decided not to retire, even though Obama could have nominated her to replace her and Democrats controlled the Senate. She enjoyed her job as a judge and she ignored pleas from other progressives, who specifically warned she could threaten abortion access.
Barrett now occupies Ginsburg’s former seat and Gorsuch that of Scalia. Without those two votes, Roe probably wouldn’t fall. During oral argument, Roberts appeared to prefer a compromise that would have allowed states to ban abortion at 15 weeks; such a decision would have prohibited only a small percentage of abortions.
Public opinion on abortion is complicated. Most Americans support at least some access to abortion, and most support at least some restrictions. (A previous edition of The Morning goes over the details.)
If Roe falls, the United States would likely be split between blue states with better access to abortion than most Americans prefer and red states with significantly less access than most Americans.
Many Democrats have long believed the abortion policy helps the party through the election — and that a court ruling overturning Roe could help them retain Congress this year. This seems possible but difficult to guarantee. It looks like the country is about to find out.
Jill FilipovicSub-stack: “I thought this decision would have a lighter touch, that the Court would functionally overturn Roe without formally overturning Roe. I underestimated their radicalism.
Dahlia LithwickSlate: “The results will be catastrophic for women…especially for young women, poor women, and black and brown women who will not have the time, resources, or ability to travel out of state.”
David FrenchDispatch: “If Alito’s opinion is real, it represents a restoration, not a rupture of our constitutional fabric…Roe was the rupture, and our nation has been facing legal and political consequences ever since.
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