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Draft of Supreme Court opinion that would overturn Roe v. Wade leaked, Politico reports

May 3, 2022, 2:03 AM UTC

A draft opinion of a U.S. Supreme Court decision would overturn Roe v. Wade if made official, Politico reported late Monday, citing a copy of the document obtained by the news outlet in an unprecedented and historic leak.

The draft majority opinion was written by Justice Samuel Alito and has circulated inside the court, according to the political news outlet.

“We hold that Roe and Casey must be overruled,” Alito wrote in the document, labeled “opinion of the court,” according to Politico. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

Casey is a reference to the related 1992 decision Planned Parenthood v. Casey that followed the landmark 1973 decision Roe v. Wade, which guaranteed constitutional protections of abortion rights and established it as judicial precedent.

Jennifer Hendricks, professor of law at the University of Colorado Law School, told Fortune she was “shocked by the utter dismissiveness with which the court treats women’s bodies,” as well as the fact that the document leaked.

“It was clear that this was coming,” she said of the news that the Supreme Court plans to overturn Roe v. Wade, calling it “the biggest non-scoop in history.”

“But it’s also so unprecedented for a draft to be leaked,” she said.

Josh Wilson, professor and chair of the political science department at the University of Denver in Colorado, said he could “literally not think of any precedent for this.”

“The court is usually a pretty controlled space,” he said, adding that the Supreme Court doesn’t even allow TV cameras in the building.

Wilson was part of the way through the draft when he spoke to Fortune on Monday night. He called the oral arguments of the conservative justices “scatter shot, all over the place.”

“They were searching for a way to get at overturning Roe,” he said. “It’s really remarkable. There’s been this discussion of, ‘We have this conservative super majority. What will they do about abortion?’ It seemed like they would continue with some sort of chipping away at abortion access, versus going directly at it.”

Hendricks said the draft opinion contains a “remarkable level of contempt for women,” adding, “This is an invasion of a woman’s body to force her to carry a pregnancy to term.”

While revisions could be made to the opinion, “there’s no reason to think the outcome will be any different,” she said, adding that controversial decisions are often announced in June, the final month the Supreme Court is in session.

“We don’t know if the leak will change that schedule,” she said. But, “I think it does put pressure on them to release it sooner.”

Wilson said he was interested in seeing how the Supreme Court responds as an institution.

“I’m particularly interested in seeing what the chief justice does,” he said. “He has shown in the past that he’s very concerned with preserving the perceived legitimacy of the court.”

He found himself contemplating a quote by Justice Sonia Sotomayor, who rhetorically asked in a December Supreme Court hearing if the court could “survive the stench that this creates in the public perception, that the Constitution and its reading are just political acts? I don’t see how it is possible.”

Wilson said that leaking the draft opinion early could benefit Republicans in the midterms, as it gives more time for the anger of Democrats, or those who are pro-choice, to dissipate. But the move also gives Democrats more time to organize a response, he pointed out.

Hendricks said the draft opinion is a Pandora’s box that puts other fundament rights in jeopardy.

“This opinion is a covert attack on the entire doctrine of fundamental rights protected from legal infringement,” she said. “The same analysis applies for overruling the right to same-sex marriage, the right to interracial marriage, the right to contraception—they’re all now teed up to be overruled as well.”

In a Monday evening tweet, former Democratic presidential candidate U.S. Sen. Bernie Sanders called on Congress to “pass legislation that codifies Roe v. Wade as the law of the land in this country now.”

“And if there aren’t 60 votes in the Senate to do it, and there are not, we must end the filibuster to pass it with 50 votes,” he tweeted.

The Senate is currently split evenly between Republicans and Democrats, with Vice President Kamala Harris, a Democrat, serving as a tie-breaker vote. A simple majority of 51 votes is required to pass legislation—but before a vote is taken, debate must end, requiring 60 votes. Thus, a 60-vote super majority is considered the de facto minimum for passing Senate legislation, with the filibuster in play.

Wilson agreed that Congress could “step in and write a law protecting the right to abortion.”

“He’s probably thinking that the way to do that is you get rid of the filibuster, otherwise, you’re never going to be able to get a vote,” he said. “But it’s also counting your votes before you actually have them. There’s no guarantee that, say, Joe Manchin or any other more moderate or conservative Democrat would support a law to try to reinstate a national protection of abortion access.”

Among Republicans who took to Twitter to respond on Monday night was U.S. Rep. Marjorie Taylor Greene, who called the news “the most significant and glorious … of our lifetime.”

“Let’s begin at conception. Let’s protect it,” she tweeted.

A majority of Supreme Court justices must agree with an opinion before it’s made official and delivered to the public, according to the Administrative Office of the U.S. Courts. A judge in charge of writing an opinion must take into consideration the opinions of other judges who disagree. Occasionally, a dissenting opinion later becomes a majority opinion when justices switch their votes. 

“No opinion is considered the official opinion of the Court until it is delivered in open Court (or at least made available to the public),” the website states.

Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett voted with Alito at a conference after oral arguments in December, Politico reported, citing a person familiar with the court’s deliberations. The list of justices supporting the opinion had not changed as of this week, the news outlet added.

According to the Guttmacher Institute, a research organization seeking to advance reproductive health rights, 23 states have laws that could be used to restrict abortion’s legal status, if Roe were overturned, some of which are called “trigger laws.” Sixteen states and Washington, D.C., have laws that protect the right to abortion.