REPORT: COURT POISED TO OVERTURN ROE

Draft shows majority supports striking down abortion rights decision

WASHINGTON

A majority of the Supreme Court is prepared to overturn the right to abortion established nearly 50 years ago in Roe v. Wade, according to a leaked draft of the opinion published

Monday by Politico.

That conclusion seemed a possibility in December when the court considered a Mississippi law that would ban abortions after 15 weeks.

But the disclosure Monday by Politico of a draft opinion that it said was circulated by Justice Samuel Alito was an extreme breach of modern Supreme Court protocol. The report said that after oral arguments Alito, along with Justices Clarence Thomas and all of three of President Donald Trump’s nominees to the court — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — voted to overturn the precedent.

The document is not necessarily the final word on what the court will say when it decides the Mississippi case this term, which will end in late June or early July. Drafts of opinions are circulated to try to convince other justices and to serve as a document justices can endorse. The leak could be calculated to spur the court to move in another direction.

But there was no reason to believe that the detailed document Politico said it obtained was illegitimate.

“The Court has no comment,” Supreme Court public information officer Patricia McCabe said in an emailed statement.

In the draft opinion published by Politico, Alito said that Roe was wrongly decided and that it had inflamed rather than united public opinion over the contentious issue.

“We hold that Roe and Casey

must be overruled,” said the document, which Politico said was labeled a draft “Opinion of the Court.” Planned Parenthood v. Casey, decided in 1992, affirmed the court’s findings in Roe. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

In the draft, Alito reportedly discounts concerns about overruling precedent. The legal principle known as stare decisis “does not compel unending adherence” to what he writes is “Roe’s abuse of judicial authority.”

The draft says Roe was “egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issues, Roe and Casey have enflamed debate and deepened division.”

The draft asserts that overturning Roe would not jeopardize other rights, such as the right to contraception and same-sex marriage.

“We emphasize that our decision concerns the constitutional right to abortion and no other right,” Alito writes. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

That would be disputed by the court’s liberals.

The decision about whether to overturn Roe is one of the most controversial the court has faced in years, but still there was shock over the Politico disclosure.

It followed an editorial in the conservative opinion section of The Wall Street Journal last week that seemed to warn that Chief Justice John Roberts was trying to turn the vote of one of the conservative justices to avoid something as dramatic as overturning Roe. The piece cited no source for its speculation.

Neal Katyal, a former acting solicitor general who was a law clerk to Justice Stephen Breyer, said the draft opinion appears legitimate and suggests that there was a preliminary vote after oral argument in December in favor of fully overturning Roe.

He compared the leak to that of the Pentagon Papers, the secret report on U.S. policy in Vietnam decades ago. “It’s possible the Court could pull back from this position, but this looks like they voted that way after the oral argument,” he tweeted.

But such was the force of the report that politicians began issuing statements about the future of abortion rights, and crowds gathered at the Supreme Court during the night.

One group was yelling “Abortion is violence,” while another chanted “abortion is health care!”

The report suggesting Roe’s impending demise sparked immediate reactions on Capitol Hill, with many on the left calling for legislative action to preserve abortion rights nationally.

“Congress must pass legislation that codifies Roe v. Wade as the law of the land in this country NOW,” Sen. Bernie Sanders, I-Vt., wrote on Twitter Monday night, calling for an end to the Senate’s filibuster rule to enact such a bill with a simple majority.

In fact, a Democratic bill that would have done just that garnered only 46 votes in February, thanks to the opposition of Sen. Joe Manchin, D-W.Va., and the absences of several other Democrats.

While it is possible a narrower bill could attract some GOP moderates such as Sen. Susan Collins, RMaine, and garner a majority, attempts to eliminate the 60-vote supermajority threshold have persistently fallen flat in the current Senate, which is split 50-50 between the party caucuses.

The more immediate practical effect played out on the campaign trail, where Democratic candidates have seen the impending abortion ruling as potential gamechanger in races where they have been on the defensive due to a fraught economy and unpopular president.

Multiple Democratic Senate candidates issued statements Monday night calling on Congress to act to protect Roe. “We have had almost 50 years to codify Roe into law, we can’t afford to wait one more day,” said Wisconsin State Treasurer Sarah Godlewski, who is running to unseat Sen. Ron Johnson, R-Wis.

Sen. Patty Murray, DWash., called it a “break the glass” moment in a statement Monday.

“It’s not happening to someone else, in some other state — it’s happening everywhere, and the highest court in the land is preparing to rip away your rights at this very moment,” she said. “We need to fight back with everything we’ve got right now.”

The reaction was more subdued on the right, where the report was met with a mix of disdain for the leak and hope that an outcome that many Republicans had spent a lifetime in politics working toward was finally at hand.

Even without evidence about the leaker’s identity or motivations, several Republicans publicly cast the leak as an attempt to intimidate the justices into backing away from their positions or at least spark a political backlash.

Sen. Tom Cotton, R-Ark., called on the court and the Justice Department to “get to the bottom of this leak immediately using every investigative tool necessary.”

“In the meantime,” he added, “Roe was egregiously wrong from the beginning & I pray the Court follows the Constitution & allows the states to once again protect unborn life.”