What’s happened?
A draft supreme court opinion, apparently by the conservative justice Samuel Alito, was leaked to Politico for a story published late on Monday. It appears to show that the court is preparing to rule in favour of Mississippi in a case over whether the state can outlaw nearly all abortions at and after 15 weeks gestation – a direct challenge to the guarantee of abortion rights enshrined in Roe v Wade.
The 98-page document, which includes 118 footnotes and a 31-page appendix on historical state abortion laws, was published in full. “Roe was egregiously wrong from the start,” it says. “Its reasoning was exceptionally weak, and the decision has had damaging consequences.”
It says Roe v Wade “must be overruled” and goes on: “It is time to heed the constitution and return the issue of abortion to the people’s elected representatives.”
What is Roe v Wade?
Roe v Wade is the court decision that protects the right to an abortion in the US up to the point a foetus can survive outside the womb, widely regarded as 24 weeks gestation. A full-term pregnancy is 39 weeks gestation. The 1973 ruling is among the most controversial in American history and has been subjected to many legal challenges over the year – but has survived until now.
For more details on the challenge to the law currently under consideration, take a look at Jessica Glenza’s explainer from December.
What does the leak tell us about the court’s decision?
While the opinion is purportedly a draft, it would have been written after a vote on the question at hand by the court – and indicates that a majority of justices reached the same view as Alito. Politico reported that four other Republican-appointed justices supported the decision, meaning a total of at least five votes on the nine-member court.
After such a vote, a justice is assigned the majority opinion and then writes a draft, which is then circulated and subject to edits. It is possible for changes to be made to the opinion, or even for votes to change, before the court’s final ruling, which is expected in the next couple of months.
How significant is a leak of a draft supreme court ruling?
The Guardian’s Washington correspondent David Smith called the leak “stunning and unprecedented” and said it would be “the worst security breach” in the court’s history. Theories abounded over the possible source of the leak, from a clerk for a liberal justice hoping to raise public pressure on the court before it publishes its decision to a conservative who wants to soften the impact of the decision when it comes – in other words, nobody knows.
A tweet from Scotusblog, a respected news and analysis site, said it was “impossible to overstate the earthquake this will cause inside the court, in terms of the destruction of trust among the justices and staff. This leak is the gravest, most unforgivable sin.”
How did reproductive-rights advocates react to the news?
With fury. A BuzzFeed reporter posted a video of about 200 protesters outside the court chanting slogans such as “abortion is healthcare” and “my body, my choice”. Another video showed somebody urging attenders: “If you feel like fucking screaming, then just scream.”
What about politicians?
Democrats said overturning Roe v Wade would be a catastrophe. They were led by the House speaker, Nancy Pelosi, and the Senate majority leader, Chuck Schumer, who issued a joint statement saying such a move would be “an abomination, one of the worst and most damaging decisions in modern history”.
They also immediately sought to make Roe v Wade an issue for crucial upcoming midterm elections. Christie Roberts, the Democratic senatorial campaign executive director, said: “At this critical moment, we must protect and expand Democrats’ Senate majority with the power to confirm or reject supreme court justices.” Republicans by turns praised the apparent vote and condemned the leak itself.
Now what?
It is worth reiterating that it is still possible that votes could change and mean that the apparent draft opinion remains just that – a draft. But if the supreme court does rule along the lines suggested by the leaked document, the consequences will be rapid and hugely consequential.
Because the US Congress has never enshrined the right to terminate a pregnancy, the overturning of Roe v Wade would mean individual states could immediately make their own decisions over the way forward. Twenty-six of them would be expected to move quickly to do so, with many having “trigger” laws on the books, which would automatically come into effect in those circumstances. That means that women in those states would immediately face severe restrictions on their ability to have an abortion, and the US would become one of only four countries to curtail that right in nearly 30 years.
