(WASHINGTON) — An apparent draft Supreme Court opinion obtained by Politico shows the panel’s conservative majority of justices is ready to overturn nearly 50 years of established abortion rights precedent since Roe v. Wade.
The document, which Politico said it obtained from a “person familiar with the court’s proceedings,” is marked “first draft” and dated Feb. 10, 2022 — two months after oral arguments were heard in the case Dobbs v. Jackson Women’s Health Organization. ABC News has not independently confirmed the draft.
“Roe was egregiously wrong from the start,” writes Justice Samuel Alito, the opinion’s apparent author, in a copy of the draft posted online.
The leak is an extraordinary breach of Supreme Court protocol and tradition. Never before has such a consequential draft opinion been leaked to the public before publication.
Reached by ABC News, a Supreme Court spokeswoman declined to comment.
The Dobbs case involves Mississippi’s ban on abortions after 15 weeks of pregnancy — well before fetal viability, the longstanding dividing line established by the court before which states cannot restrict a woman’s access to the procedure.
During arguments in December, five of the justices hinted that they were ready to do away with the “viability standard” established by Roe and a subsequent 1992 decision, Planned Parenthood v. Casey.
An unnamed source familiar with the deliberations told Politico that Justices Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett all initially supported a ruling siding with Mississippi and “that line-up remains unchanged as of this week.”
The drafting of Supreme Court opinions, however, is a fluid and dynamic process, sources familiar with the internal operations have told ABC News. The document posted suggests a majority of justices is likely to side with Mississippi, but how broad a ruling will ultimately come down remains unclear.
Chief Justice John Roberts famously changed his vote late during deliberations over the Affordable Care Act in 2012, narrowly saving the law from being struck down. A Wall Street Journal editorial this month suggested that Roberts, who reveres established precedent and the court’s reputation, may be trying to convince one of his conservative colleagues to join him in a narrower opinion.
If Alito’s opinion were to hold, as written, it would dramatically upend abortion rights across America, effectively allowing each state to set its own policy.
“The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion,” the draft concludes. “Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”
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