A leaked draft of a US Supreme Court opinion shows a majority of five justices have decided to allow states to outlaw abortion by overruling the landmark cases of Roe v Wade and Planned Parenthood v Casey and uphold a Mississippi law which criminalises termination of a pregnancy after 15 weeks.
The draft opinion — first reported by Politico — appears to have been authored by Justice Samuel Alito, and is dated 10 February. It indicates that he, along with Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett voted to overturn Roe and Casey after hearing oral arguments in the case of Dobbs v Jackson Women’s Health Organization.
“We hold that Roe and Casey must be overruled,” he wrote. ““It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives”.
A former Supreme Clerk who reviewed the draft opinion told The Independent it is “consistent” with the work product produced during the court’s internal deliberative processes. The authenticity of the document could not be immediate verified by other news organisations.
The immediate impact of such a decision would be to outlaw abortion across a broad swath of the United States, forcing women to carry unwanted pregnancies to term unless they can travel to a state where abortion is legal under state law, or risk undergoing an illegal procedure outside of licensed medical facilities.
Giving states the right to outlaw abortion would reverse a half-century of precedent, and would fulfill an equal number of years of work by religious activists who have opposed the advent of legal abortion because they believe life begins at conception.
It would also represent a huge victory for Republicans, who have sought for decades to reshape the judiciary in a direction often more hostile to the rights of women and minorities. All five of the justices voting in favour of overturning Roe and Casey were appointed by Republican presidents, and four of the five are conservative Catholics.
Legal experts have said overturning Roe and Casey would also give the court’s conservative majority a start down a path that could end with it overturning other landmark cases which rely on it, including Obergefell v Hodges, the 2015 case which legalised same-sex marriage across the United States, and United States v Windsor, which overturned the federal Defence of Marriage Act.
Many of the same religious activists who have called for overturning Roe for decades have also expressed a desire for the court to overrule Griswold v Connecticut, another landmark case which established the right of married couples to use contraception.
But in the draft document, Justice Alito said it was not the court’s job to care what the consequences of the decision would be.
“We cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work,” he wrote. “We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision”.
The leak of a draft Supreme Court opinion is unprecedented in the history of the court, and could indicate the alarm felt by the justices in the minority — or their clerks — at the possibility that the court’s conservative majority will strip away a right many women regard as a necessity for full participation in civic life and the economy.
Because the court’s opinion in the case has not yet been published, it is possible that one or more justices could have decided to reverse course in the intervening months since the opinion was circulated among the justices.
In an email sent to Politico staff and reported by a New York Times media reporter, editor-in-chief Matt Kaminski and executive editor Dafna Linzer said they were “confident” in the authenticity of the draft document.
