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Supreme Court Reportedly Plans To Overturn Roe V. Wade, According To Leaked Draft Opinion

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Topline

Members of the Supreme Court have agreed to overturn the 1973 Roe v. Wade decision, which guaranteed abortion rights nationwide, according to an apparently leaked draft opinion obtained by Politico on Monday—potentially upending decades of legal precedent as many states seek to restrict or cut off access to abortion.

Key Facts

The draft opinion—which Politico says it obtained from an unnamed source along with authenticating materials—is signed by conservative Justice Samuel Alito and stamped with a message indicating it was distributed to other judges February 10, and is part of a case regarding a Mississippi law that bans abortions after 15 weeks of pregnancy.

The opinion calls Roe “egregiously wrong” and says both Roe v. Wade and Planned Parenthood v. Casey—a 1992 case that altered Roe but upheld abortion rights—“must be overruled,” arguing the Constitution doesn’t guarantee a right to abortion access and individual states can decide on their own whether to permit the procedure.

The draft doesn’t note which justices signed onto the draft opinion, but an unnamed person familiar with the decision told Politico at least four other conservative judges sided with Alito’s argument: Justices Amy Coney Barrett, Brett Kavanaugh, Neil Gorsuch and Clarence Thomas.

According to Politico, the court’s three liberal justices will draft at least one dissent, and Chief Justice John Roberts’ status is not clear.

What To Watch For

The Supreme Court is expected to issue a decision in the Mississippi abortion case by late June, when its current term ends.

Tangent

The fact that a Supreme Court draft opinion was purportedly leaked to a news outlet is unprecedented. The high court largely conducts its internal deliberations in secret before rendering its decisions, and substantive leaks from the justices’ chambers are virtually unheard-of. Forbes has reached out to the court’s public information office for comment.

Key Background

The high court is deliberating on abortion as many Republican-led states seek to limit access to the procedure. In recent years, many states like Mississippi have passed laws that would ban abortion outright after various points during pregnancy, while other states have passed more technical restrictions on medical clinics that effectively make it difficult to receive an abortion. Historically, federal judges have swiftly blocked most laws that violate Roe v. Wade shortly after their passage, but last year, the Supreme Court seemed to be more open to abortion restrictions that clash with legal precedent. In September, the court opted against striking down a Texas law that banned almost all abortions after six weeks, partly due to the law’s unusual structure, which tasked private entities—rather than government officials—with enforcing the ban through civil lawsuits. And in December, several of the Supreme Court’s conservative judges appeared ready to uphold Mississippi’s 15-week abortion ban, setting the stage for either a wholesale end to Roe or a narrower decision that gives states more power to enact tight abortion restrictions. According to Politico’s reporting, the court appears to have chosen the more sweeping option, opting to strike down Roe entirely.

Big Number

26. That’s how many states are expected to ban most abortions if Roe v. Wade is overturned, according to the pro-abortion rights Guttmacher Institute. The list includes states whose pre-Roe bans are still on the books, as well as states that passed restrictions after Roe and states with “trigger laws” that automatically ban the procedure as soon as Roe is overturned.

Further Reading

Supreme Court has voted to overturn abortion rights, draft opinion shows (Politico)

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