In a stunning breach of Supreme Court confidentiality and secrecy, Politico has obtained what it calls a draft of a majority opinion written by Justice Samuel Alito that would strike down Roe v. Wade.
The draft was circulated in early February, according to Politico. The final opinion has not been released and votes and language can change before opinions are formally released. The opinion in this case is not expected to be published until late June.
CNN has not independently confirmed the document’s authenticity. Politico says it has authenticated the draft. A Supreme Court spokesperson declined to comment to CNN.
According to the draft, the court would overturn Roe v. Wade’s holding of a federal constitutional right to an abortion. The opinion would be the most consequential abortion decision in decades and transform the landscape of women’s reproductive health in America.
It appears that five justices would be voting to overturn Roe. Chief Justice John Roberts did not want to completely overturn Roe v. Wade, meaning he would have dissented from part of Alito’s draft opinion, sources tell CNN, likely with the court’s three liberals.
That would mean that the five conservative justices that would make up the majority overturning Roe are Alito and Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
Roberts is willing, however, to uphold the Mississippi law that would ban abortion at 15 weeks of pregnancy, CNN has learned. Under current law, government cannot interfere with a women’s choice to terminate a pregnancy before about 23 weeks, when a fetus could live outside the womb.
A largely somber crowd gathered outside the Supreme Court building Monday evening, as people came together to console one another and question what to do next.
At one point, the crowd began to chant, “Hey, hey, ho, ho, Samuel Alito’s gotta go.” “We will not go back.” “Abortion rights are under attack, what do we do, stand up fight back.” “Pack the courts.”
Politico’s publishing of the draft is unprecedented by the high court’s standards of secrecy. The inner deliberations among the justices while opinions are being drafted and votes are being settled are among the most closely held details in Washington.
“This news is simply stunning for the Supreme Court as an institution,” said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law. “Not only is the result it portends — the overruling of Roe and Casey — a shockwave to our constitutional politics, but we have never seen a leak remotely like this from inside the Court, where we’re not just hearing what the result is going to be, but we’re seeing the draft majority opinion in advance. It’s hard to believe that the former doesn’t help to explain the latter, but it’s an earthquake in both respects.”
The case in question is Dobbs v. Jackson. It concerns a challenge to Mississippi’s 15-week ban on abortion and oral arguments were heard on December 1. The release of a final opinion in the case is expected later this Spring or early summer.
In the draft opinion, Alito writes that Roe “must be overruled.”
“The Constitution makes no reference to abortion and no such right is implicitly protected by any constitutional provision,” Alito wrote. He said that Roe was “egregiously wrong from the start” and that its reasoning was “exceptionally weak, and the decision has had damaging consequences.”
He added, “It is time to heed the Constitution and return the issue of abortion to the people’s representatives.”
“That is what the Constitution and the rule of law demand,” he said, according to the draft.
Already nearly half of the states have or will pass laws that ban abortion, while others have enacted strict measures regulating the procedure.