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Providence and America

Supreme Court to Overturn Roe v. Wade According to Leaked Draft Opinion

Erin Schaff/The New York Times via AP, Pool

In a rare occurrence that shocked Supreme Court observers, a "first draft" of a majority opinion in Dobbs v. Jackson Women's Health Organization leaked Monday night that shows the highest court in the country has apparently voted to overturn Roe v. Wade


The nearly 100-page opinion, obtained by POLITICO, is authored by Justice Samuel Alito, a George W. Bush appointee who's served on the Court since 2006. POLITICO, in releasing the leaked draft, admits its emergence is "a rare breach of Supreme Court secrecy and tradition around its deliberations." 

The release opinion's conclusion reads, in part:

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.

Alito's draft opinion, while not officially the opinion of the Supreme Court, is a stern condemnation of the 1973 ruling in Roe v. Wade that created a constitutional protection for a woman's right to abortion, as well as the 1992 decision in Planned Parenthood v. Casey that reinforced SCOTUS' decision in Roe. "The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation's history and traditions," Alito wrote in his stinging opinion of those previous decisions and their impact:

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.


While some remained skeptical that the leak is a real draft, SCOTUSblog tweeted Monday night that the document is "almost certainly" authentic:

According to POLITICO's reporting on the leak, "a person familiar with the court's deliberations said that four of the other Republican-appointed justices — Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — had voted with Alito in the conference held among the justices after hearing oral arguments in December, and that line-up remains unchanged as of this week." Meanwhile, the source told POLITICO that liberal Justices Breyer, Sotomayor, and Kagan "are working on one or more dissents." It is unclear, according to POLITICO, how Chief Justice Roberts will vote "and whether he will join an already written opinion or draft his own."


Many observers, pundits, and even Senator Josh Hawley (R-MO) speculated that the leak came from a liberal clerk who sought to add pressure to the situation — either for a conservative justice to change their vote or to spur Congress to work on legislation that would again create a "right" to abortion before SCOTUS can overturn that right it previously created. 


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