WASHINGTON — A draft opinion circulated among Supreme Court justices suggests that earlier this year a majority of them had thrown support behind overturning the 1973 case Roe v. Wade that legalized abortion nationwide, according to a report published Monday night in Politico.
It’s unclear if the draft represents the court’s final word on the matter.
The Associated Press could not immediately confirm the authenticity of the draft Politico posted, which if verified marks a shocking revelation of the high court’s secretive deliberation process, particularly before a case is formally decided.
The news outlet published what was labeled as a “1st Draft” of the “Opinion of the Court” in a case challenging Mississippi’s ban on abortion after 15 weeks, a case known as Dobbs v. Jackson Women’s Health Organization.
The Supreme Court has yet to issue a ruling in the case, and opinions — and even justices’ votes — have been known to change during the drafting process. The court is expected to rule on the case before its term is up in late June or early July.
The draft is signed by Justice Samuel Alito, a member of the court’s 6-3 conservative majority, who was appointed by former President George W. Bush.
“Roe was egregiously wrong from the start,” the draft opinion states.
“We hold that Roe and Casey must be overruled,” it adds, referencing the 1992 case Planned Parenthood v. Casey that affirmed Roe’s finding of a constitutional right to abortion services but allowed states to place some constraints on the practice. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
The draft opinion in effect states there is no constitutional right to abortion services and would allow individual states to more heavily regulate or outright ban the procedure.
News of the draft opinion comes a month after Colorado Gov. Jared Polis signed into law a bill affirming abortion access in the state.
The legislature approved House Bill 1279 in March along party lines, with Republicans spending hours arguing against the measure’s passage. The bill was debated in the House for 24 consecutive hours in what was one of the longest debates in the legislature’s history.
The five-page bill says a government entity in Colorado may not “deny, restrict, interfere with or discriminate against an individual’s fundamental right to use or refuse contraception or to continue a pregancy and give birth or to have an abortion.”
The measure also states that “a fertilized egg, embryo or fetus does not have independent or derivative rights under the laws of the state.”
Colorado Democrats introduced the legislation in response to questions about the future of Roe v. Wade, the 1973 U.S. Supreme Court decision protecting the right to an abortion without excessive government restriction. The court could overturn the precedent as soon as June in a ruling in a case out of Mississippi, potentially opening the door for abortion restrictions in Colorado at the county or municipal level.
Colorado, which in 1967 became the first state to loosen its abortion laws, is among the states with the fewest abortion restrictions.
Abortion access wouldn’t have been immediately affected in Colorado if Roe v. Wade is overturned, but abortion rights advocates warned that without legislation affirming abortion access there could still be threats.
The concern among abortion rights groups was that conservative Colorado counties or municipalities could have tried to pass local measures banning or significantly limiting access to abortion procedures or medication.
But because House Bill 1279 changes only state statute, not the state constitution, Republicans could still introduce bills and ballot measures seeking to limit abortion access. Only a constitutional amendment, which would require approval by 55% of voters, could more permanently settle the question.
Colorado voters have consistently rejected ballot measures seeking to restrict abortion access.
Abortion rights groups are considering whether to pursue a ballot measure in 2024 enshrining abortion access in Colorado’s constitution.
Politico said only that it received “a copy of the draft opinion from a person familiar with the court’s proceedings in the Mississippi case along with other details supporting the authenticity of the document.”
The report came amid a legislative push to restrict abortion in several Republican-led states — Oklahoma being the most recent — even before the court issues its decision. Critics of those measures have said low-income women will disproportionately bear the burden of new restrictions.
The leak jumpstarted the intense political reverberations that the high court’s ultimate decision was expected to have in the midterm election year. Already politicians on both sides of the aisle were seizing on the report to fundraise and energize their supporters on either side of the hot-button issue.
An AP-NORC poll in December found that Democrats increasingly see protecting abortion rights as a high priority for the government.
Other polling shows relatively few Americans want to see Roe overturned. In 2020, AP VoteCast found that 69% of voters in the presidential election said the Supreme Court should leave the Roe v. Wade decision as is; just 29% said the court should overturn the decision. In general, AP-NORC polling finds a majority of the public favors abortion being legal in most or all cases.
Still, when asked about abortion policy generally, Americans have nuanced attitudes on the issue, and many don’t think that abortion should be possible after the first trimester or that women should be able to obtain a legal abortion for any reason.
Alito said the court can’t predict how the public might react and shouldn’t try. “We cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work,” Alito wrote in the draft opinion, according to Politico.
At arguments in December, all six conservative justices signaled that they would uphold the Mississippi law, and five asked questions that suggested that overruling Roe and Casey was a possibility.
Only Chief Justice John Roberts seemed prepared to take the smaller step of upholding the 15-week ban, though that too would be a significant weakening of abortion rights.
Until now, the court has allowed states to regulate but not ban abortion before the point of viability, around 24 weeks.
The court’s three liberal justices seemed likely to be in dissent.
It’s impossible to know what efforts are taking place behind the scenes to influence any justice’s vote. If Roberts is inclined to allow Roe to survive, he need only pick off one other conservative vote to deprive the court of a majority to overrule the abortion landmark.
Colorado Sun staff writer Jesse Paul contributed to this report.