A draft opinion leaked from the U.S. Supreme Court shows a majority of justices are in favor of overturning the Roe v. Wade decision, which legalized abortion nationwide, although – legal experts warn – votes could switch before the court makes it official.
The opinion, published exclusively by Politico, is authored by Justice Samuel Alito and would send the issue of abortion back to the states – meaning that state legislatures would determine the abortion laws in the 50 respective states.
Politico reported that four other justices – Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – have sided with Alito in wanting Roe overturned.
Supreme Court Chief Justice John Roberts issued a statement on Tuesday confirming that the draft is authentic but stressing "it does not represent a decision by the Court or the final position of any member." Roberts called the leak an "egregious breach" of trust and ordered an investigation to be conducted.
JUST IN: The Supreme Court confirms the authenticity of the draft opinion revealed last night by Politico. The chief justice has ordered an investigation into the leak. pic.twitter.com/XZweHdyhCG— SCOTUSblog (@SCOTUSblog) May 3, 2022
The case involves a Mississippi law that prohibits abortions after the 15th week of a woman's term. Roberts reportedly wants to uphold the Mississippi law without overturning Roe, CNN reported. Furter, the outlet said, the court's three liberal justices want to strike down the Mississippi law.
"We hold that Roe and Casey must be overruled," Alito writes, referencing a 1992 case, Planned Parenthood v. Casey, that upheld the core holding of Roe. "The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely – the Due Process Clause of the Fourteenth Amendment."
Roe, Alito writes, "was egregiously wrong from the start."
"Its reasoning was exceptionally weak, and the decision has had damaging consequences," he writes. "And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people's elected representatives."
The leak is the biggest breach in the modern history of the Supreme Court, which often deliberates on major cases for months before releasing decisions to the public. An opinion was expected before the court's summer recess and likely would have been handed down in late June or early July. The court typically releases its biggest opinions on the final days of a term. It is unknown how the leak will impact the official release date.
A decision overturning Roe would be the most significant victory in the history of the pro-life movement.
After the opinion was leaked, some pro-lifers theorized that the breach was intended to pressure the five-vote majority to switch sides.
"This is unprecedented," tweeted pro-life activist Cissie Graham Lynch. "How is this leaked almost 2 months early? Will Justices be bullied by the left to change their votes in the 11th hour? PRAY THEY STAY STRONG."
Something is fishy in DC tonight. This is unprecedented. How is this leaked almost 2 months early? Will Justices be bullied by the left to change their votes in the 11th hour? PRAY THEY STAY STRONG. #RoeVWade https://t.co/7Ab36XLiAV— Cissie Graham Lynch (@CissieGLynch) May 3, 2022
"Pray for the Justices tonight and every night until the decision comes out. I fear there will be unprecedented threats against them," tweeted Lila Rose, founder of Live Action.
Pray for the Justices tonight and every night until the decision comes out. I fear there will be unprecedented threats against them. 5/5 https://t.co/rAfSoXp28U— Lila Rose (@LilaGraceRose) May 3, 2022
Internal vote-switching is not unprecedented.
After the Casey case was argued in 1991, five justices voted in conference to overturn Roe and to send the issue back to the states. But before the 1992 decision was released, Justice Anthony Kennedy switched his vote, according to multiple reports. Instead of a 5-4 decision overturning Roe, it was a 5-4 decision upholding Roe.
Ken Starr, the solicitor general under President George H.W. Bush, delivered oral arguments for the administration in 1991 and urged the Supreme Court to overturn Roe.
Starr told Christian Headlines he was hopeful after oral arguments.
"I continue to be convinced that the majority of the court at that time knew that Roe v. Wade had been wrongly decided – and that they would not … have voted as the court did in Roe v. Wade 20 years earlier," Starr told Christian Headlines. "But they blinked."
Photo courtesy: Adam Szuscik/Unsplash
Michael Foust has covered the intersection of faith and news for 20 years. His stories have appeared in Baptist Press, Christianity Today, The Christian Post, the Leaf-Chronicle, the Toronto Star and the Knoxville News-Sentinel.