Leaked Draft of Supreme Court Opinion Indicates Roe v. Wade May Be Overturned Draft ruling, published by Politico, represents an extraordinary breach of the court’s private deliberations
WASHINGTON—A leaked Supreme Court draft opinion written by Justice Samuel Alito and published late Monday by Politico indicated the court may be preparing to overturn Roe v. Wade, the 1973 precedent that established a constitutional right to an abortion.
The draft, dated from February, couldn’t be independently confirmed, but legal observers said it appeared authentic. The Supreme Court’s spokeswoman declined to comment.
The 67-page opinion, marked as a first draft, declared that Roe was “egregiously wrong and deeply damaging,” and that Planned Parenthood v. Casey, a 1992 decision that limited but didn’t eliminate abortion rights, prolonged the court’s error.
“Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion,” the draft opinion said. “Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”
The draft, written in February, doesn’t necessarily represent the court’s ultimate decision in the case or even the majority’s current thinking. But it is consistent with the tenor of December’s oral arguments in the case challenging Roe, Dobbs v. Jackson Women’s Health Organization, concerning Mississippi’s ban on abortions after 15 weeks. The draft was labeled the opinion of the court, implying a majority of justices had agreed with it.
The apparent leak represents a nearly unheard of breach of the court’s private, behind-the-scenes deliberations on a blockbuster case the court hasn’t yet publicly issued. It also could threaten longstanding bonds of trust on a court that has already been under ideological and personal strains.
After an initial vote among justices on a case, Supreme Court decisions can undergo considerable evolution in tone and substance as justices circulate draft opinions for weeks and months. Those drafts are circulated between chambers—with justices typically offering feedback, support and criticism in writing—until the court arrives at a final ruling, which is frequently accompanied by concurring and dissenting opinions that weigh in on the court’s holding.
Given those internal processes, it’s possible that there are more recent versions of the decision that look different than the draft Politico published. And on occasions, justices can change their positions during deliberations.
Since the December arguments in the Mississippi case, many court watchers have been expecting the justices to make significant changes to the legal landscape for abortion, with the only question being whether the court would merely narrow abortion rights or instead overrule constitutional protections entirely.
Mississippi’s 15-week abortion ban would prohibit the procedure far earlier than current Supreme Court precedent allows. Additional states already have been adopting similar bans in anticipation of the court’s decision. Some states have adopted even more stringent restrictions.
The court’s decision has been expected by the end of June or early July.
Write to Jess Bravin at jess.bravin+1@wsj.com and Brent Kendall at brent.kendall@wsj.com
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