Supreme Court Will Overturn Abortion Rights, Leaked Draft Suggests

Editor's Note: On May 3, 2022, Chief Justice John Roberts confirmed the authenticity of the leaked documents and said the court will open an investigation into the leak. 

The Supreme Court is poised to overturn abortion protections in the United States by striking down Roe v. Wade, according to a leaked draft written by Justice Samuel Alito and obtained and authenticated by POLITICO.

Never in the modern history of the court has a draft been disclosed publicly while a case is still pending, according to a May 2, 2022, report by POLITICO.

"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," stated Steve Vladeck, a CNN Supreme Court analyst and professor at the University of Texas School of Law, in an interview with CNN.

The leaked majority opinion would also uphold Mississippi's 15-week ban on abortion in the Dobbs v. Jackson Women's Health Organization case, POLITICO reported. Oral arguments in that case were heard Dec. 1, 2021. Alito's draft opinion would overturn Roe v. Wade, the 1973 decision that guaranteed the federal constitutional protection of abortion, as well as Planned Parenthood v. Casey, the 1992 decision that reaffirmed the constitutionality of Roe but weakened the standard of protection for people seeking abortion.

"We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment," Alito wrote in the 98-page document labeled "Opinion of the Court" with a circulation date of Feb. 10.

Four other justices, all conservatives, are expected to vote alongside Alito to overturn Roe: Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Chief Justice John Roberts, who is also a conservative, has previously expressed he does not want to completely overturn Roe v. Wade, so he may dissent from Alito's opinion, along with the three liberal justices: Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. However, according to CNN, Roberts is willing to uphold the Mississippi law.

'It is time to heed the Constitution and return the issue of abortion to the people's elected representatives.'

In the draft, Alito calls Roe an "abuse of judicial authority" that was "egregiously wrong from the start," and states, "It is time to heed the Constitution and return the issue of abortion to the people's elected representatives."

Some states have already begun rolling back abortion protections, and several have "trigger bans" in place that would outlaw abortion if and when the Supreme Court overturns Roe.

However, it's important to note that Alito's leaked opinion is just a draft—at least for now. Justices have been known to change the language of their opinions and even their votes after a draft is circulated. The final published decision is expected in late June.

"Let's be clear: This is a draft opinion. It's outrageous, it's unprecedented, but it is not final. Abortion is your right—and it is STILL LEGAL," stated Planned Parenthood in a tweet response to POLITICO's report. "While abortion is still legal, tonight's report makes clear that our deepest fears are coming true. We have reached a crisis moment for abortion access."