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Supreme Court leak indicates justices will overturn Roe v. Wade

A draft of the most anticipated ruling of the term suggests the high court will overturn almost 50 years of precedent and strike down the federal right to abortion

The Supreme Court’s conservative majority will overturn the landmark ruling in Roe v. Wade according to a leaked draft of the majority opinion, which Politico released Monday night. 

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

The court had no comment on the authenticity of the draft. 

Abortion rights supporters say that if the draft is authentic, the ruling would be a major shift in abortion rights and deprive half the nation of constitutional rights. 

“If the Supreme Court does indeed issue a majority opinion along the lines of the leaked draft authored by Justice Alito, the shift in the tectonic plates of abortion rights will be as significant as any opinion the court has ever issued,” said Anthony Romero, executive director of the American Civil Liberties Union, in a statement. “It would deprive half the nation of a fundamental, constitutional right that has been enjoyed by millions of women for over 50 years.” 

Stemming from a challenge to Mississippi’s 15-week ban on all abortions, the case before the court teed up the conservative supermajority court their best opportunity to overturn the 1973 ruling in Roe v. Wade that has long been a target of conservatives. 

The right to abortions in the U.S. appeared to be hanging by a thread after the court heard oral arguments in the case last December. Most of the conservative justices who maintain a 6-3 majority on the court appeared ready to completely overturn the precedent, leaving Chief Justice John Roberts alone in his suggestion that the court could limit the right without completely overturning it.

The draft opinion suggests the court is taking the more extreme option and overturning the precedent altogether. 

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“We hold that Roe and Casey must be overruled,” Alito wrote. “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one which the defenders of Roe and Casey now chiefly rely — the due process clause of the Fourteenth Amendment.” 

Reporting from Politico said that Alito is joined in the majority by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. The liberal justices are reported to be writing dissents in the case, but it is not clear how Chief Justice John Roberts will vote.

Alito goes on to say that the due process clause guarantees some rights that are not mentioned in the constitution but those rights have to be rooted in the nation’s history and tradition. 

“The right to abortion does not fall within this category,” Alito wrote. 

The due process clause of the 14th Amendment is the backbone of many rights established by the Supreme Court aside from abortion, such as the legalization of same-sex marriage in Obergefell v. Hodges, the right to birth control in Griswold v. Connecticut and the criminalization of anti-sodomy laws in Lawrence v. Texas

In his draft opinion, Alito claims the right to abortion not only had no support in American law until the later part of the 20th century, but had long been a crime in every single state. 

Roe either ignored or misstated this history, and Casey declined to reconsider Roe’s faulty historical analysis,” the Trump appointee wrote. “It is therefore important to set the record straight.” 

During oral arguments in December, the liberal justices suggested the court should not overturn Roe because it would go against stare decisis, the principle that judges ought to respect the precedent of prior rulings. Alito addresses this point in the draft by stating that some of the most important constitutional decisions have overruled prior precedents, citing Brown v. Board of Education, Plessy v. Ferguson and Adkins v. Children’s Hospital of D.C.

Alito claims Roe’s reasoning was “exceptionally weak” and the decision had “damaging consequences” that have “enflamed debate and deepened division,” therefore, the right to abortion should be returned to the states.

“The Constitution does not prohibit the citizens of each state from regulating or prohibiting abortion,” Alito wrote. “Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”

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Overruling Roe would not automatically ban abortion in all states — only those with so-called trigger laws in place. State legislatures across the country have been preparing for the justices’ ruling by passing legislation that would restrict or altogether ban abortions as soon as the justices officially release their ruling. The Center for Reproductive Rights has found that if Roe is overturned, abortion would be prohibited in 24 states and three territories.

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The right to abortions in the U.S. appeared to be hanging by a thread after the court heard oral arguments in the case last December.