The Monday night report was based on an initial draft opinion that was written for the court’s majority by Justice Samuel A. Alito Jr. and obtained by Politico.
The 1973 Roe case, which made abortion a federal constitutional right, “was egregiously wrong from the start” and “must be overruled,” Justice Alito writes in the draft opinion.
“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” he reportedly writes.
While the draft decision obtained by Politico is labeled as the “Opinion of the Court,” justices sometimes change their votes during deliberations. Indeed, it is speculated that the court was ready to strike down Obamacare outright, but Chief Justice John G. Roberts Jr. switched his vote at the last minute.
According to Politico, citing “a person familiar with the court’s deliberations,” five justices voted to strike down Roe and a later abortion-rights case, Planned Parenthood v. Casey, at their conference after their December public hearing in Dobbs v. Jackson Women’s Health Organization.
Justice Alito was joined by Justices Clarence Thomas, Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett in upholding a Mississippi law that bans most abortions after 15 weeks of pregnancy.
All five justices were nominated by Republican presidents.
Justice Alito’s draft opinion reportedly calls the reasoning in Roe and Casey “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 three jurists appointed by Democrats – Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan – are working on dissents, the source told Politico.
The political website and magazine added that the vote of Chief Justice Roberts was unclear, though it wouldn’t matter if the rest of the 5-to-3 breakdown is accurate.
Mississippi Attorney General Lynn Fitch, who is defending the state’s abortion law in the case, said in a statement that “we will let the Supreme Court speak for itself and wait for the Court’s official opinion.”
But Vernon Jones, a Republican candidate for a House seat in Georgia, wasn’t waiting, saying that the reported ruling is “long overdue.”
“On average America murders 1,000,000 babies annually,” he said in a statement. “It’s time to keep up the pressure and next defund Planned Parenthood.”
Mr. Jones credited former President Donald Trump, who also has endorsed his House campaign.
“If it hadn’t been for President Trump and his conservative leadership, this day would have never been possible,” Mr. Jones said. “It is because of his historic nominations to our Supreme Court that generations of unborn children have now been saved.”
Former Sen. David Perdue of Georgia, a Republican candidate for governor, said he is “hopeful” the report is correct.
“This potential ruling shows the importance of the three conservative Supreme Court Justices we confirmed working with President Trump while I was in the U.S. Senate,” Mr. Perdue said. “When I’m governor, Georgia will be the safest place in America for the unborn.”
Democrats had a different take.
The Democratic Senatorial Campaign Committee said if the report is true, “this Republican attack on abortion access, birth control and women’s health care has dramatically escalated the stakes of the 2022 election.”
Former Democratic presidential candidate Hillary Clinton tweeted Monday: “Not surprising. But still outrageous.”
“It will kill and subjugate women even as a vast majority of Americans think abortion should be legal. What an utter disgrace,” Mrs. Clinton said.
Sen. Elizabeth Warren, Massachusetts Democrat, called the purported decision the work of an “extremist Supreme Court [that] is posed to overturn #RoeVWade and impose its far-right, unpopular views on the entire country.”
Planned Parenthood President and CEO Alexis McGill Johnson called the leaked opinion “horrifying and unprecedented.”
“It confirms our worst fears: that the Supreme Court is prepared to end the constitutional right to abortion by overturning Roe v. Wade,” she said. “While we have seen the writing on the wall for decades, it is no less devastating, and comes just as anti-abortion rights groups unveil their ultimate plan to ban abortion nationwide.”
The draft opinion, Politico reported, includes a notation indicating it was distributed on Feb. 10. According to Politico, “no draft decision in the modern history of the court has been disclosed publicly while a case was still pending.”
Several prominent Republicans reacted to the unprecedented leak of a pending ruling, smelling a liberal-left effort to intimidate the justices into changing their ruling.
“The left continues its assault on the Supreme Court with an unprecedented breach of confidentiality, clearly meant to intimidate,” tweeted Sen. Josh Hawley, Missouri Republican. “The Justices mustn’t give in to this attempt to corrupt the process. Stay strong.”
Even if Roe and Casey are struck down entirely, that doesn’t mean abortion becomes illegal but instead that it would become a matter for state law.
Many states would almost certainly outlaw most abortions — several Republican-led states have come close to doing so in recent years as part of the campaign to overturn Roe. But a number of other states would likely make abortion a right under their state constitutions or laws, as several Democratic-led ones have done in recent years.
American Civil Liberties Union Executive Director Anthony Romero said of the expected ruling, “the shift in the tectonic plates of abortion rights will be as significant as any opinion the Court has ever issued.”
“It would deprive half the nation of a fundamental, constitutional right that has been enjoyed by millions of women for over 50 years,” Mr. Romero said. “The breach in protocol at the Court pales in comparison to the breach in constitutional freedoms that the Court is charged with upholding. However the decision ultimately comes down, the ACLU will never stop fighting for a person’s right to choose when and if to have a child.”
Indeed, some Democrats in federal office called for passage of a law that would make abortion a nationwide right under federal statutes, frustrating those expected red-state laws.
“If this is true, the Senate must act NOW!” tweeted Rep. Diana DeGette of Colorado. “The House voted to make Roe v. Wade the law of the land regardless of the Court’s decision in this case, but we need the Senate to do the same. The Senate needs to pass the Women’s Health Protection Act now - before it’s too late!”
Tweeted Rep. David Cicilline, Rhode Island Democrat, “abortion rights are under attack but abortion is still constitutionally protected. To preserve this right, the Senate needs to pass the Women’s Health Protection Act NOW.”
Liberals also used the reported decision to renew their calls for the Senate to abolish the filibuster, a procedural tool that requires 60 votes for most action.
“Congress must pass legislation that codifies Roe v. Wade as the law of the land in this country NOW,” tweeted Sen. Bernard Sanders, Vermont independent. “If there aren’t 60 votes in the Senate to do it, and there are not, we must end the filibuster to pass it with 50 votes.”
Rep. Hakeem Jeffries of New York, chairman of the House Democratic caucus, went further by calling the potential decision and the Court illegitimate because “the radical right stole two seats on the Supreme Court.”
“And now the so-called majority apparently plans to rob women of their long-held reproductive freedom. We will NOT go backward,” he wrote.
• Kerry Picket and Valerie Richardson contributed to this report.
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