Joe Biden has warned that a leaked draft supreme court ruling overturning Roe v Wade, the 1973 case which guaranteed the right to abortion, would represent a huge change in America law and could imperil a wide range of other civil rights.
In a historic moment that shook the US to the core and highlighted jagged social and political divisions, the court confirmed the draft was authentic but said it did not “represent a decision by the court or the final position of any member on the issues in the case”.
The US president called the provisional court opinion “radical” and said the ruling, if handed down, would represent a “fundamental shift in American jurisprudence” and could imperil rights including same-sex marriage and access to contraception.
Politico published the draft by justice Samuel Alito on Monday night. The website said the draft was supported by four other right-wingers on a panel conservatives control 6-3.
On Tuesday the chief justice, John Roberts, called its leak a “betrayal of the confidences of the court” which could “undermine the integrity of our operations”, and promised an investigation.
The final ruling of the court will not be made until June.
The New York congresswoman Alexandria Ocasio-Cortez, warned that the court “isn’t just coming for abortion – they’re coming for the right to privacy Roe rests on, which includes gay marriage and civil rights.”
Biden, speaking to reporters on Tuesday morning, said the draft ruling had ramifications for “all the decisions you make in your private life, who you marry, whether or not you decide to conceive a child, whether or not you can have an abortion and a range of other decisions [including] how you raise your child”.
The draft ruling would allow states to declare abortion illegal.
Protesters gathered outside the court on Tuesday, while demonstrations swelled throughout around the country – both in support of and against abortion rights. Thousands have joined rallies in New York, Boston, Nashville, Dallas, New Orleans and more. In San Francisco, a man was arrested after scaling the 60-floor Salesforce tower, in an apparent anti-abortion protest.
Outside the supreme court, some chanted “Abortion is healthcare” and carried signs reading “Justices get out of my vagina”, “Legal abortion once and for all” and “We won’t go back”. A smaller group chanted “Hey, hey, ho, ho, Roe v Wade has got to go”. Amid tense exchanges, barriers were erected.
Under cloudy skies at the bottom of the steps leading up to the majestic marble columns of the supreme court building near the US Capitol, Haley Lund, from Woodbridge, Virginia, told the Guardian: “This terrifies me. I could not sleep, so I figured I should be here.
“This opens a floodgate for everyone … like the right to privacy, to due process, the right that we’re innocent until proven guilty. All of that can go away if this goes away.”
In a statement, Biden outlined how Democrats might fight back.
First, the president said, his administration would argue Roe was based on precedent and “‘the 14th amendment’s concept of personal liberty’… against government interference with intensely personal decisions”.
“I believe that a woman’s right to choose is fundamental,” Biden said. “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 he had directed advisers to prepare responses “to the continued attack on abortion and reproductive rights, under a variety of possible outcomes”.
“We will be ready when any ruling is issued,” he said.
Politico said it received a copy of the draft, which also dealt with Planned Parenthood v Casey, a 1992 case, from a person familiar with proceedings in Dobbs v Jackson Women’s Health Organization, a Mississippi case due to be decided this summer.
The draft ran to 98 pages including a 31-page appendix of state abortion laws and included 118 footnotes.
Alito wrote: “Roe was egregiously wrong from the start. 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.”
He added: “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.”
As many as 26 states are expected to enact partial or total abortion bans if Roe falls. Some Republican-run states are expected to attempt to make traveling for an abortion illegal. Democratic-run states have indicated moves to protect and help women who seek an abortion.
Vice-president Kamala Harris said: “The rights of all Americans are at risk. If the right to privacy is weakened, every person could face a future in which the government can potentially interfere in the personal decisions you make about your life. This is the time to fight for women and for our country with everything we have.”
Barack Obama and former first lady Michelle Obama issued a joint statement that read: “The consequences of this decision would be a blow not just to women, but to all of us who believe that in a free society, there are limits to how much the government can encroach on our personal lives.”
Polling shows clear majority support for abortion access. Christian and conservative groups campaign to end it regardless.
“I am angry, upset and determined,” said Democratic senator and 2020 presidential hopeful Elizabeth Warren, as she rallied outside the court.
She added: “The United States Congress can keep Roe vs Wade the law of the land – they just need to do it.”
She was referring to the Women’s Health Protection Act, which fell down in the Senate in March, opposed by all Republicans and Democratic senator Joe Manchin of West Virginia.
Warren added: “The Republicans have been working towards this day for decades … plotting, carefully cultivating these supreme court justices so that they could have a majority on the bench who would accomplish something that a majority of Americans do not want.”
If the court overturns Roe, Biden said, “it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose. And it will fall on voters to elect pro-choice officials this November.”
But legislative success would require reform to the filibuster, a Senate rule which requires 60 votes for most legislation. Moderate Democrats have blocked such moves on issues including voting rights. Biden himself has expressed opposition.
This might not be the final ruling on Roe, the court continues to discuss provisional opinions until it issues its final decisions on the biggest cases before it at the end of the annual term, in June.
But reproductive rights advocates are alarmed, also about wider implications, such as the right to same-sex marriage, determined in Obergefell v Hodges in 2015.
Laurence Tribe, a Harvard law professor, said: “If the Alito opinion savaging Roe and Casey ends up being the opinion of the court,” Tribe wrote, “it will unravel many basic rights beyond abortion and will go further than returning the issue to the states: it will enable a [Republican] Congress to enact a nationwide ban on abortion and contraception.”
In a sharply divided Washington, Republicans confirmed three right-leaning justices under Donald Trump, Neil Gorsuch, Brett Kavanaugh and, just weeks before the 2020 election, Amy Coney Barrett, a hardline Catholic conservative.
Biden has overseen the confirmation of Ketanji Brown Jackson, the first Black female justice, but she has not yet replaced the retiring Stephen Breyer, another liberal, and her arrival will not change the ideological imbalance.
Republicans welcomed the draft ruling and condemned the leak.
Josh Hawley, a hardline Missouri senator, called Alito’s draft “tightly argued, and morally powerful.”
Among Republican moderates, Susan Collins of Maine – who under Trump supported the appointments of Neil Gorsuch and Brett Kavanaugh but voted against Barrett – pointed to a possible betrayal.
“If this leaked draft opinion is the final decision,” she said, “it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office.”
Among women’s rights campaigners, condemnation of the Alito draft was strong.
Laphonza Butler, president of the advocacy group Emily’s List, said: “It’s past time to vote out every official who stands against the pro-choice majority.”
