Law

US Supreme Court poised to overturn Roe v Wade abortion ruling, unprecedented leaked draft suggests

Lily Wakefield May 3, 2022
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people protest to protect roe v wade

Protesters link arms as they gather at the US Supreme Court in Washington, DC, on 2 May, 2022.(AFP via Getty/ STEFANI REYNOLDS)

A leaked draft opinion suggests that the US Supreme Court is on the verge of overturning Roe v Wade, which legalised abortion across the US.

Politico published an unprecedented Supreme Court leak on Monday night (2 May), penned by conservative justice Samuel Alito.

Addressing a case challenging Mississippi’s ban on abortion after 15 weeks, it declared that the 1973 decision Roe v Wade had “imposed” a “highly restrictive regime on the entire nation”.

It also took aim at the 1992 decision Planned Parenthood v Casey, which solidified Roe and banned imposing “undue burden” on a person’s right to abortion.

Alito wrote: “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.

“That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty’. The right to abortion does not fall within this category.”

Alito described Roe v Wade as “egregiously wrong from the start”, and added: “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.

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

According to Politico, which has published the document in full, a source “familiar with the court’s deliberations” said that four other conservative Supreme Court justices – Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – were backing Alito in his opinion.

Stephen Breyer, Sonia Sotomayor and Elena Kagan are reportedly working on one or more dissents, while Chief Justice John Roberts’ plan remains unclear.

The document is only a draft, and opinions often go through several versions. It in unclear whether further drafts have been produced, and the Supreme Court’s holding will not be set in stone until the final opinion is published, which is likely to happen within the next two months.

If the majority opinion remains the same, abortion would become instantly illegal in the 22 US states which still have total bans that were made defunct after Roe, according to the BBC.

The leak marks the first time in modern history that a Supreme Court opinion on a pending case has been made public.

Protesters, both pro and anti-abortion, gathered outside the Supreme Court on Monday night, while House Speaker Nancy Pelosi and Senate Majority Leader Chuck Schumer released a joint statement, in which they said: “If the report is accurate, the Supreme Court is poised to inflict the greatest restriction of rights in the past fifty years – not just on women but on all Americans.

“The Republican-appointed Justices’ reported votes to overturn Roe v Wade would go down as an abomination, one of the worst and most damaging decisions in modern history.”

More: abortion rights, Roe v. Wade, US Supreme Court

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