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An apparent first draft of a Supreme Court of the United States (SCOTUS) opinion has been leaked, which appears the court will end Roe v. Wade and Planned Parenthood v. Casey.
According to the first draft opinion, reported by Politico , the opinions of Roe v. Wade and Planned Parenthood v. Casey – both of which gave near-unilateral rights to abortion nationwide – would be struck down, and states would be free to legislate abortion.
While the draft has not been confirmed by the Supreme Court, legal experts say it appears to be authentic.
The opinion comes by way of George W. Bush-appointed Justice Samuel Alito.
“Roe was egregiously wrong from the start,” Alito wrote in his opinion. “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.
“We hold that Roe and Casey must be overruled. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
The case to which the SCOTUS directed the opinion was brought before the court after the Mississippi legislature passed a law in 2018 that would prevent abortions after 15 weeks of pregnancy, except for medical emergencies and fetal abnormalities.
The legislation was challenged by the Jackson Women’s Health Organization, stating that the law was unconstitutional and went against previous SCOTUS opinions: Roe v. Wade and Planned Parenthood v. Casey.
This is the first time in the modern history of the Supreme Court that a draft decision has been disclosed publicly while a case was still pending. This rare breach of Supreme Court secrecy is expected to intensify the debate over what was already the most controversial case on the docket this term.
Such drafts are often amended in consultation with other judges, and in some cases justices change their votes altogether. The reaction to this leak of the preliminary draft, published by Politico, is expected to increase pressure on the judges' final decision.
Alabama Gov. Kay Ivey posted on Twitter about the leak saying, "This unprecedented leak is concerning, outrageous and a blatant attempt to manipulate the sacred procedures of the U.S. Supreme Court. Those responsible should be held accountable. My prayer is that Roe v. Wade is overturned and that life prevails. Tonight, let us say a prayer for life and that our Justices remain steadfast in their convictions. Here in Alabama, we will continue fighting for the unborn."
Alabama passed a bill criminalizing abortion in 2019, which was subsequently blocked by Myron Thompson, a United States District Judge for the Middle District of Alabama.
According to Matt Clark, President of the Alabama Center for Law and Liberty, preliminary scuttlebutt had five justices in favor of overturning Roe, and a reversal of Alito’s opinion is unlikely.
“These five justices that voted on it are solid,” Clark said. “The things that I’m seeing in this opinion line up with their judicial philosophy very, very, very well. So, the only way that I can see something like this changing is if the justices wind up getting threatened or something like that; and that’s actually what I’m kind of afraid of.
“With this opinion being a release, I’m afraid of mobs and stuff showing up at the justice’s house and trying to use intimidation, trying to get them to change their votes. But, absent something like that, I can’t see anything changing the outcome of this case.”
Alito ended his opinion by reaffirming the nature of the opinion, which is to give the right of legislating abortion to the states.
“We end this opinion where we began,” Alito said. “Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each state from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”
Alabama State Rep. Andrew Sorrell (R-Muscle Shoals) says that although the decision may hurt Republicans in the November elections, it is worth it to potentially end abortion. He also echoed Clark’s sentiment in being wary of the safety of the SCOTUS justices who voted in favor of the opinion.
“We should probably hire them a food tester until this is over,” Sorrell said, tongue-in-cheek.
Clark also stated that Alabama would have a swift path to enforcement if the opinion moves forward as drafted.
“What they will have to do is, the Alabama Attorney General will have to file a motion to lift the injunction from Judge Thompson, and it should be a pretty simple process,” Clark said. "They won’t be able to enforce it immediately, but it shouldn’t take very long. It’s pretty cut and dry.”
Sorrell said that he believes a Democrat-controlled Congress could potentially pack the Supreme Court should they win enough seats in November.
Clark disagrees that the Democrats can win sufficient seats in Congress due to the unfavorable polling on the performance of the Biden administration.
“The Democratic capital is just so low right now,” Clark said.
While many pro-life individuals will see this as a victory, the draft is open to revision before final release by the court. The opinion was drafted in February, and it is yet unclear if any modifications have been made since that time. SCOTUS drafts are often amended after first drafts, but first-draft opinions are not usually reversed in their totality.
Following the announcement from Politico, barricades were reportedly placed in front of the SCOTUS building in Washington D.C, which had already begun gathering protestors.
Right now: Barricades are up around the Supreme Court building, just minutes after reports from Politico were leaked indicating SCOTUS has voted to overturn Roe v. Wade. pic.twitter.com/LxR9rbs6TF— Cami Mondeaux (@cami_mondeaux) May 3, 2022
A quiet scene so far at Supreme Court building. Some have lit candles and hold signs reading, “I stand with Planned Parenthood.” pic.twitter.com/om1777toqr— Cami Mondeaux (@cami_mondeaux) May 3, 2022
The Attorney General of Mississippi, Lynn Fitch, released a statement following the Politico report.
“We will let the Supreme Court speak for itself and wait for the court’s opinion,” Fitch said.
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