An initial draft opinion obtained by Politico shows that the conservative majority of the Supreme Court is moving toward striking down Roe v. Wade, the landmark 1973 Supreme Court decision that created a right to abortion.
“Roe was egregiously wrong from the start,” Justice Samuel Alito writes in the 98-page draft labeled “Opinion of the Court.”
“We hold that Roe and Casey must be overruled,” Alito continues. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
While Politico is careful to note this is simply a draft decision—the Supreme Court isn’t expected to decide abortion rights for another couple of months—the decision as currently written is a full repudiation of abortion rights. It would rule that Mississippi has the right to ban abortion after 15 weeks, and grant other states the right to restrict abortion even further.
The draft decision itself goes far beyond just upholding the Mississippi law; it would completely overturn the most essential abortion rights established in Roe and later affirmed in Planned Parenthood v. Casey.
The draft decision says “the right to abortion” does not fall within the rights to liberty. “It is time to heed the Constitution and return the issue of abortion to to the people’s elected representatives,” the decision continues.
The leaking of the decision—itself a newsworthy and unprecedented action for the notoriously secretive Supreme Court—is sure to have an immediate effect in Washington. Democrats have long argued for national laws protecting abortion rights. Republicans have long argued that states should be free to make their own laws.
The Supreme Court has instantly thrown what was once reflexively referred to as “settled law” into an open question.
Among the five justices who appear to have signed on to the draft decision—Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—all five were appointed by Republicans. Three were appointed by Donald Trump.
Chief Justice John Roberts, who was appointed by Republican George W. Bush, had not signed on to the initial draft decision, but as Politico notes, he may ultimately side with the majority.
A number of GOP lawmakers who claim to support abortion rights voted for Trump’s Supreme Court picks seemingly under the assumption that those justices would not strike down abortion.
Sen. Susan Collins (R-ME) famously said she would not support a nominee who demonstrated “hostility” toward Roe, let alone outright opposition.
But Collins voted for Gorsuch (who got his seat after Republicans went “nuclear” in the Senate to allow Supreme Court nominees to only garner a simple majority), Kavanaugh (who faced allegations of sexual assault), and Barrett (who only got her seat after Ruth Bader Ginsburg died late in the election season when the Senate typically waits for results).
If the draft decision becomes real in the coming months, Republicans will have to answer to voters who believed the right to an abortion was, in fact, settled. And while some Republicans may want to join Democrats in passing legislation to protect the right to an abortion, any such bill would face stiff opposition in the Senate where there is still a 60-vote threshold for passage.