By Tyler Sonderholzer
The Supreme Court of the United States (SCOTUS) will decide to overturn Roe v. Wade, according to a leaked draft opinion written by Justice Samuel Alito. Chief Justice John Roberts said in a statement that the leak is authentic, however, it is not a final decision or represents the final position of any court member. The SCOTUS is expected to make a formal decision within the next two months.
“Roe was egregiously wrong from the start,” Alito said in the draft opinion. “Its reasoning was exceptionally weak, and the decision has had damaging consequences.”
The draft opinion was part of deliberations over Dobbs v. Jackson Women’s Health Organization as part of Mississippi’s anti-abortion law. The draft opinion is dated from February and has most likely been changed as justices have had the opportunity to write dissents or other revisions. However, the five justices who are expected to strike down Roe have not changed their decision.
Four other Republican-appointed justices: Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, are expected to join Alito in the majority; the other Republican-appointed justice Roberts seems to support upholding Mississippi’s 15-week abortion ban without overturning Roe v. Wade. However, Roberts would need to convince one of the four other conservative justices in order to make it happen. Meanwhile, the three Democratic-appointed justices Stephen Breyer, Sonia Sotomayor and Elena Kagan will dissent.
If the court does follow through with overturning Roe, it will leave the legality of abortion to the states or Congress. Currently, 16 states and Washington D.C have written laws that protect the right to abortion while 23 states have either unenforced, pre-Roe abortion bans, a “trigger ban” in place, a near-total ban and six or eight week bans in effect. The rest of the states have no explicit laws in place that restrict or protect the right to abortion.
No draft opinion has ever been leaked, sparking harsh criticism from both sides of the aisle. While a case is still pending, Roberts has ordered an investigation into the leak. The leak has sparked fierce protests outside the SCOTUS building and some have even been held outside the homes of justices.
As a result of the leak, congressional Democrats have advocated for Congress to codify Roe v. Wade as a law. The Senate recently held a vote on the Women’s Health Protection Act of 2022, however, a cloture vote to get to the final vote failed with 49 Democrats voting in favor and all 50 republicans plus Democratic Senator Joe Manchin of West Virginia. Manchin voted against the cloture motion calling it too broad to get his vote,
The leak does not represent a final decision of the court, however, if the justices continue to hold their current positions then it will strike down the only current federal abortion protections in the nation. It will leave the legality of abortion to the states or Congress, however, it is unlikely that a deal in Congress would get passed.
