The Supreme Court is ready to overturn Eggs against Wade and allow states to ban abortion, according to an alleged draft opinion leaked to Politico.
It is very unusual for the high court to overturn a historic decision. But it’s even more extraordinary that a draft Supreme Court opinion leaks ahead of his final release.
The fact that a draft document emerged from the normally buttoned up and secret high court is another sign of how politically divisive the abortion case has become.
The Los Angeles Times could not authenticate the alleged draft. Sometimes draft judgments may be revised in recent months as judges step in during the writing process.
According to Politico, Judge Samuel A. Alito Jr. wrote a draft in February that said Roe’s abortion sentence was “extremely wrong” and should be completely overturned.
Such a result would not be a surprise. Breath and Justice Clarence Thomas they have made it clear for years that they thought the Roe should be overturned. In recent years, they have been joined by three Trump appointees who agree with them: Judges Neil M. Gorsuch, Brett M. Kavanaugh, and Amy Coney Barrett.
During the December oral discussion, Chief Justice John G. Roberts Jr. focused on Mississippi law and its 15-week abortion limit, which is at the center of the current discussion.
Roberts argued that the court should decide on that matter and stop there. The tenor of his argument suggested that the five conservatives to his right were inclined to overturn Roe completely.
Judges typically vote on an issue provisionally in their private conference and the majority then start working on a draft opinion.
But the outcome is not fixed until all judges have signed, and it is not uncommon for the wording or votes to change in some cases in May or June.
In 2012, for example, there appeared to be five judges ready to overturn the Affordable Care Act, but the Chief Judge changed his vote and decided in a cramped way to keep it.
The leak of the draft opinion reflects what has become an intense struggle within the court over the abortion sentence.
Last week, the Wall Street Journal editorial page expressed alarm over what it called “lobbying” within the court to get one of the judges – most likely Kavanaugh – to join Roberts in a more restrictive ruling. That report, which detailed the inner workings of the court, was itself another break with customary secrecy.
Kavanaugh often joined Roberts and was the most likely defector from a five-judge bloc to take down Roe completely. Kavanaugh showed no sign of joining Roberts when the case was heard in December.
Liberal judges – and more likely their employees and friends – may have wanted to sound the alarm before it was too late for five judges to vote to take Roe down.
Opponents of abortion expressed shock at the leak and expressed concern that it was done to pressure conservative judges.
“The left continues its assault on the Supreme Court with an unprecedented breach of confidentiality, clearly intended to intimidate,” Senator Josh Hawley (R-Mo.) Tweeted. “The judges must not give in to this attempt to corrupt the trial. Be strong.”
Supporters of abortion rights expressed indignation at the draft opinion.
In a statement Monday night by top Democrats, Senate Majority Leader Charles E. Schumer and President Nancy Pelosi said, “If the report is accurate, the Supreme Court is poised to inflict the largest restriction on rights in the past 50 years. years, not just women but all Americans. The votes received by the Republican-appointed judges to overturn Roe v. Wade would be considered an abomination, one of the worst and most damaging decisions in modern history. “
Abortion has always been the subject of heated debate in court and, at times, of unexpected changes.
In the spring of 1992, a conservative majority appeared to be ready to cancel the right to abortion in a Pennsylvania case.
Chief Justice William H. Rehnquist disagreed on the 1973 Roe decision, along with Judge Byron White, and they were joined by five new Conservative appointees from Presidents Reagan and George HW Bush.
Rehnquist wrote an opinion for the court that would undermine the right to abortion.
But to her surprise, Judges Sandra Day O’Connor, David H. Souter and Anthony Kennedy met and agreed to join a middle sentence that allowed for more regulation of abortion but preserved a woman’s right to make the abortion decision.
Rehnquist didn’t learn of the move until mid-May.
The result was a surprise 5-4 ruling in Planned Parenthood of Southeastern Pennsylvania against Casey advocating the right to abortion.
That defeat for the conservative movement came as a shock and led directly to the composition of the current tribunal.
Federalist Society attorneys began scrutinizing potential court candidates to make sure the judges weren’t wavering when it came time to turn Roe against Wade.
If the draft opinion is valid, the ruling equates to the worst-case scenario of abortion rights advocates: It would give states the authority to set their own abortion rules.
Twenty-six states are certain or likely to ban abortion in this scenario, according to an analysis from the Guttmacher Institute, a research organization that advocates for the right to abortion.
It would likely mean that abortion is banned or essentially banned in the south and parts of the Mountain West, where many conservative state legislatures have already enacted such bills in anticipation of a Supreme Court decision like this one.
Those who have not already acted are expected to do so quickly.
Texas has already banned abortion after fetal heart activity is detected or about 6-6 weeks of pregnancy. Oklahoma recently passed a total ban on abortion with one exception only to preserve the woman’s life in the event of a medical emergency. Many recent abortion bans have been enacted without exception for cases resulting from rape or incest.
Patients in states like Louisiana, Florida, or Texas would likely have to travel hundreds of miles to reach an abortion provider in states that should have access to abortion, such as CaliforniaIllinois or Maryland, or pursuing home remedies.
Democrat-led states like these should preserve their liberal abortion laws, with few limits on the procedure, particularly until a fetus is viable outside the womb at around 24 weeks.
Political battles would likely take place in the state houses of oscillating states or in those where one party controls the legislature and the governor controls the other.
In Michigan, the Democratic governor. Gretchen Whitmer recently went to court to try to get her state’s pre-Roe abortion ban off the books. She had previously asked her Republican-controlled legislator to lift the ban, but she went nowhere.
Democrats hope that overthrowing Roe will galvanize their constituents in November’s mid-term elections. Abortion has rarely moved the needle in the past, but many voters have acted on the theory that Roe would never be overturned.