- The draft opinion leaked to Politico appeared to show Justice Alito’s argument on abortion.
- The unprecedented leak was likely to raise questions about the court’s process.
WASHINGTON – A draft Supreme Court opinion published by Politico on Monday suggested the court is considering a decision that would overturn the landmark 1973 Roe v. Wade decision that established a constitutional right to abortion.
The highly unusual leak of a draft opinion, which USA TODAY could not independently verify, set off a firestorm around one of the nation’s most divisive culture war issues and simultaneously raised questions about the court’s ability to keep its deliberations secret.
“Roe was egregiously wrong from the start,” Associate Justice Samuel Alito writes in the draft obtained by Politico. “We hold that Roe and Casey must be overruled.”
A Supreme Court spokeswoman declined to comment to USA TODAY.
Though Supreme Court deliberations have leaked before, including during President Richard Nixon’s administration, the release of a draft opinion from the closely guarded high court was unprecedented in modern times. Politico said the draft was circulated in February, about two months after oral argument in the blockbuster case.
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Justices often circulate drafts and it was not clear, based on the document Politico posted alone, how much support Alito’s writing currently has. Citing a “person familiar with the deliberations,” Politico said four of the other Republican-appointed members – Associate Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – had voted with Alito during the justices private discussion after oral arguments in the case in December.
The circulation of drafts is one part of the court’s process. As those drafts circulate, justices write dissents and concurrences to try to convince their colleagues of other points of view. The process is fluid and votes can and often do change. The court’s opinion was not expected until the final day of its term, in June or July.
The justices are considering a direct challenge to Roe from Mississippi, which passed a ban on most abortions after 15 weeks of pregnancy.
A majority of the court signaled during oral arguments that it would uphold Mississippi’s ban. In nearly two hours of debate, the justices wrestled with the potential impact of overturning Roe on people seeking an abortion, as well as how a heavily divided nation might perceive the Supreme Court if it abandons the watershed ruling from 1973.
Each of the six conservative justices asked questions that suggested at least some skepticism with the position taken by abortion rights groups – and the Biden administration – that allowing Mississippi’s ban would not only violate the Constitution but also raise questions about the court’s neutral interpretation of the law.
The White House declined to comment on the Politico report. The Justice Department did not respond to a request for comment.
Contributing: Joey Garrison.
