Written by Supreme Court Justice Samuel Alito, the initial draft is his opinion and what he believes reflects the opinion of at least four other conservative members of the top court.
It does not reflect comments or reactions from other members of the nine-member court. It is also not the final decision, since the Supreme Court has not ruled on the case yet, and judges can also change their final vote.
In the reported draft opinion, published late Monday, Alito said he believes that “Roe was egregiously wrong from the start.”
“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” the opinion reportedly adds.
On Tuesday, President Joe Biden issued a statement saying, “I believe that a woman’s right to choose is fundamental,” and calling on pro-choice lawmakers to enshrine abortion rights into law.
“Roe has been the law of the land for almost 50 years, and basic fairness and the stability of our law demand that it not be overturned,” Biden said, urging voters to support pro-choice candidates during congressional elections in the fall.
What is the Roe v. Wade ruling?
Roe v. Wade is the landmark US Supreme Court judgment of 1973 that legalized the right to abortion across the country.
It was once again upheld in a 1992 ruling, which said states could not place an “undue burden” on women seeking abortions before a fetus could survive outside the womb, at around 24 weeks.
According to the Guttmacher Institute, a New York-based think tank that supports abortion rights, 26 US states are certain or likely to ban abortion if Roe v. Wade is overturned. Barring Texas, 22 of those states have either total or near-total bans that are currently blocked by the ruling.
What did Alito write in the draft opinion?
In his repudiation of Roe v. Wade, Alito reportedly said the reasoning behind the abortion law was “exceptionally weak” from the very beginning.
“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,” Alito reportedly wrote.
The draft also said “women are not without electoral or political power” to explain why it rejected the idea that an abortion ban could subjugate women in American society.
It is typical court procedure for a member of the court to write a draft of the court’s opinion after holding a preliminary vote on a case privately, but it is exceptional for the draft opinion to be leaked to the public as a case remains pending before it.
Politico said 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.”
Protesters gather outside the court
Hundreds of people gathered outside the Supreme Court in Washington D.C. to protest against the leaked draft opinion.
People held up banners as well as chanted “abortion is health care,” and others explained to reporters that justices should not deprive people of their choice.
“The first line in the draft is that this is a moral issue,” one abortion rights supporter told the Reuters news agency. She said if that was the case, then justices “shouldn’t be depriving us of our choice.”
Another supporter said “no one, especially no men,” should be able to tell women what to do with their bodies. Protesters also called on Democrats to act, chanting “do something Democrats.”
House Speaker Nancy Pelosi and Senate Majority Leader Chuck Schumer, the top two Democrats in Congress, have slammed the draft court opinion in a joint statement.
They said if the draft opinion turned out to be true, it was “poised to inflict the greatest restriction of rights in the past 50 years — not just on women but on all Americans.”
Politico reported that three Democratic-appointed justices at the Supreme Court were working on one or more dissents.
Why is the Mississippi abortion law relevant?
In July 2021, the southern US state of Mississippi called on the Supreme Court to overturn Roe v. Wade ruling.
Mississippi wanted the Supreme Court to uphold a state law that banned abortion after 15 weeks of pregnancy, which is several weeks earlier than what the Roe v. Wade ruling allows.
Under Roe v. Wade, states cannot ban abortion until the viability of the fetus outside the womb, at around 24 to 28 weeks.
Even though the Mississippi abortion bill was signed into law in 2018, it never went into effect because lower courts blocked it.
In December last year, the Supreme Court heard oral arguments for nearly two hours on both sides of the matter.
The Supreme Court is expected to rule on the case in June, which is why the case is being watched this closely.
It is not the final ruling of the court, as justices often change their votes after consultation with others.
(DW)