The Supreme Court is poised to overturn Roe v. Wade and Planned Parenthood v. Casey, according to a bombshell new report from Politico.
A draft decision from Justice Samuel Alito obtained by the outlet states that “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”
“The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives,” concludes the draft, which is not final and could change, or be supplanted by the time the Court issues its ruling. The document indicates that it was first circulated on February 10; Dobbs v. Jackson Women’s Health Organization was argued on December 1 of last year.
Justices can, and have, changed their position after staking one out during an initial vote. In 2012, it was reported by CBS’s Jan Crawford that Chief Justice John Roberts initially voted in favor of ruling that the Affordable Care Act was unconstitutional before changing course and upholding it in National Federation of Independent Business v. Sebelius.
The Mississippi law banning abortion after 15 weeks of pregnancy at issue in Dobbs was struck down by a district court judge and then by the U.S. Court of Appeals for the Fifth Circuit. It would be upheld as constitutional under a ruling that looked like Alito’s draft.
According to the report, Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett all joined Alito, voting in favor of a full overturning of Roe during initial deliberations in Dobbs, while Chief Justice Roberts was undecided. Those lines remained intact as of this week, according to Politico, but CNN has reported that Roberts would dissent from Alito’s opinion yet is willing to uphold the Mississippi law as constitutional. Under the framework laid out by Alito in his draft opinion, states would be permitted to enact restrictions on abortion not allowed under Roe and Casey.
“Procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution’s text or in our Nation’s history,” writes Alito, who also argues that the viability standard established by Roe — which in theory allows abortion to be regulated after fetuses become capable of surviving outside the womb — “makes no sense,” because it depends on “factors that have nothing to do with the characteristics of the fetus.”
Barriers were erected outside the Supreme Court on Monday night to prevent a storming of the building or other disorderly conduct, as a large crowd gathered at the site.
The leak of a draft opinion — if the one obtained by Politico is confirmed to be authentic — would be unprecedented in the modern era and mark a stunning betrayal of the Court’s process. A Supreme Court spokesperson declined to provide Politico with any comment on the matter.