Updated Tues., May 5, 2022 at 12:25 p.m.
Chief Justice John Roberts took the unprecedented step of acknowledging the authenticity of a leaked draft of a Supreme Court’s majority decision that, barring last minute changes, would strike down women’s right to abortions in the United States.
Roberts, who was appointed by president George W. Bush but did not join five other Republican-appointed justices in the opinion, issued a statement Tuesday morning that defended the court’s integrity and called for an investigation into the source of the leak. The statement confirms that the 98-page draft, originally published by Politico, is real, but cautions that “it does not represent a decision by the Court or the final position of any member on the issues in the case.”
“To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed. The work of the Court will not be affected in any way,” Roberts wrote in the statement.
“This was a singular and egregious breach of trust that is an affront to the Court and the community of public servants who work here.”
The draft opinion, dated Feb. 10 and written by Justice Samuel Alito, would eviscerate almost 50 years of legal abortion rights for women in the United States. Four other justices, all appointed by Republican presidents, are reportedly voting with Alito, which would overturn the 1973 Roe vs. Wade decision that effectively legalize the procedure nationwide.
The decision was made public through the unprecedented leak of the draft, written to Politico, which published the document on Monday evening. It is labeled “1st Draft” with a notice that the “opinion is subject to formal revision before publication.” Politico’s story noted that justices have in the past revised draft opinions in substantive ways before official rulings are issued.
Still, the draft signals that at least at present, a majority of Supreme Court justices, including one of three women on the court, intend to gut what for five decades has existed as women’s right to choose whether to take a pregnancy to term.
The draft opinion is a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision – Planned Parenthood v. Casey – that largely maintained the right. “Roe was egregiously wrong from the start,” Alito writes.
“We hold that Roe and Casey must be overruled,” he writes in the document, labeled as the “Opinion of the Court.” “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
The draft was apparently written and circulated to the eight other members of the court in February. According to Politico, Alito was joined in the opinion by four other conservative justices: Amy Coney Barrett, Neil Gorsuch, Clarence Thomas and Brett Kavanaugh. That means Chief Justice John Roberts, who was nominated by Republican President George W. Bush, joined the three associate justices nominated by Democratic presidents in dissent.
Judge Ketanji Brown Jackson, who was confirmed to be the first Black woman Supreme Court justice designee last month, hasn’t yet been seated, but her vote wouldn’t have changed the court’s ideological makeup and therefore likely wouldn’t have changed the decision.
The ruling culminates two generations of conservative political strategy that attempted to seat enough SCOTUS justices to reverse Roe vs. Wade, the 1973 decision that legalized abortion based on women’s right to privacy over their medical decision. That decision was decided by a margin of 7-2, with five justices appointed by Republicans and two appointed by Democrats in a majority decision.
Left-leaning groups weighed in on Monday night.
“If this 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,” said Christie Roberts, executive director of the Democratic Senatorial Campaign Committee. “At this critical moment, we must protect and expand Democrats’ Senate majority with the power to confirm or reject Supreme Court justices.”