(The Hill) – The Supreme Court is poised to overturn the landmark 1973 decision in Roe v. Wade that protects the federal right to abortion, according to a draft majority opinion published Monday evening by Politico.
The 67-page document, described as an initial draft majority opinion, would effectively eliminate abortion protections at the federal level and hand authority over abortion access to the states. Penned by Justice Samuel Alito, one of the court’s staunchest conservatives, the opinion concludes by declaring that Roe and the court’s 1992 decision in Planned Parenthood v. Casey have no grounding in the Constitution.
“We now overrule those decisions and return that authority to the people and their elected representatives,” the opinion states. Under those cases, states were prohibited from banning abortion prior to fetal viability, around 23 weeks.
A spokesperson for the Supreme Court had no comment in response to questions.
“For the sake of women across the country, this should not be the Supreme Court’s final opinion when it comes to abortion rights,” New York Gov. Kathy Hochul said in a statement issued Monday evening. “We have been fighting this battle for too long. I refuse to go backwards. I refuse to let my new granddaughter have to fight for the rights generations have fought for and won, rights that she should be guaranteed.”
“For anyone who needs access to care, our state will welcome you with open arms,” Hochul said. “New York will always be a place where abortion rights are protected and where abortion is safe and accessible.”
The justices’ votes are often fluid up to the point of an opinion’s publication, and the draft may have changed since February, when it was purportedly written. A published opinion from the court is expected sometime within the next two months.
The leak of the draft opinion marks the most stunning breach in recent memory of the secrecy that typically shrouds the Supreme Court and its inner-workings, and it is likely to further tarnish an institution whose perception among the public has recently fallen to historic lows.
If the court indeed follows the draft’s contours and strikes down Roe in coming months, it would send political shockwaves through the country ahead of the November midterm elections. According to a December poll by Harvard CAPS-Harris, a majority — 54 percent — of Americans said they oppose overturning Roe v. Wade.
The Hill could not independently verify the document’s authenticity. But Politico, in an editor’s note, said it undertook an extensive review and is “confident of the authenticity of the draft.”
Alito, in the draft opinion, employed language that mirrored remarks he made during a December oral argument in which he said he viewed Roe as “egregiously wrong.”
The issue before the court was a Mississippi law that bans virtually all abortions after 15 weeks of pregnancy. Deep-red Mississippi, in court papers, explicitly asked the justices to use the case as a vehicle to overturn the landmark 1973 decision that first recognized a constitutional right to abortion existing in the 14th Amendment’s due process clause.
“Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences,” Alito’s majority opinion draft states. “And far from bringing about a national settlement of the abortion issue, Roe and Casey have inflamed debate and deepened division.”
Politico, citing an unnamed source, said that majority also included fellow conservative Justice Clarence Thomas as well as former President Trump’s three nominees: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
Many Republican officials urged the court to adopt this approach, including a dozen GOP governors who urged the justices in a friend-of-the-court brief to use the Mississippi case to eliminate federal abortion protections and let states regulate the procedure. The 2018 Mississippi law at issue in the case, which has been paused during litigation, is just one of hundreds of abortion measures that state legislatures passed in recent years.
Justice Sonia Sotomayor, the court’s most outspoken liberal, issued a dire warning to her fellow justices during the December oral argument about the repercussions of turning over the issue of abortion to the states.
She suggested such a move would be seen as highly politicized and merely a reflection of the court’s new lopsided 6-3 conservative majority resulting from the seating of Trump’s three nominees.
“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” she asked Mississippi’s solicitor general. “I don’t see how it is possible.”
Statement from Gov. Kathy Hochul
“I am horrified by the apparent draft Supreme Court opinion leaked this evening that would overturn the right to abortion guaranteed by Roe v. Wade. For the sake of women across the country, this should not be the Supreme Court’s final opinion when it comes to abortion rights.
“We have been fighting this battle for too long. I refuse to go backwards. I refuse to let my new granddaughter have to fight for the rights generations have fought for and won, rights that she should be guaranteed.
“For anyone who needs access to care, our state will welcome you with open arms. New York will always be a place where abortion rights are protected and where abortion is safe and accessible. Just as the Statue of Liberty lifts her lamp tall in our harbor, New York will never stop fighting for what’s right — unafraid and undeterred.”
Statement from Senator Kirsten Gillibrand
“The leaked draft majority opinion overturning Roe v. Wade reveals that the Supreme Court’s right-wing majority is poised to destroy the fundamental human and reproductive rights of millions of women, willfully disregarding public opinion and court precedent. While we can hold out hope for revisions, we cannot wait to act.
“At the federal level, Congress must enshrine into law the right to an abortion and Democrats must be willing to eliminate the filibuster to do so. As we approach the midterm elections, it is absolutely critical that Democrats turn out in record numbers to maintain our majorities. The American people do not support the government interfering with what people do with their own bodies.
“At the state level, Democrats must enact strong pro-choice legislation where we currently have control. In purple and red states, we must fight tooth and nail to flip legislatures and pass legislation guaranteeing reproductive rights, including access to abortion. There is no state where a majority of the public supports a federal ban on abortion.
“And with this fundamental right in jeopardy, it is incumbent upon states like New York, where abortion is safe and accessible, to open our doors to those seeking care.
“We must refuse to back down or move backwards—the lives and futures of millions of Americans depend on us acting now.”