Legal experts weigh in on Democrats’ options and the likelihood of a SCOTUS pivot.
The stunning leak of a Supreme Court draft overturning Roe v. Wade is sparking an investigation — and some major questions about what will happen to abortion rights that currently remain protected under federal law… for now.
On Tuesday, Chief Justice John Roberts blasted the leak as a “betrayal of the confidences of the Court” and launched an investigation into how the document was leaked to Politico in the first place. He also made clear that while the draft was authentic, it doesn’t “represent a decision by the Court or the final position of any member on the issues in the case.”
Still, the ruling is widely expected to become final in late June or early July, when all signs indicate the conservative-majority court will significantly weaken the landmark ruling — or do away with it altogether. While 16 states already have laws on the books to protect abortion rights, 13 other states have so-called “trigger” laws that would immediately or very quickly outlaw abortion if Roe v. Wade is overturned.
Even as the future of abortion rights hangs in the balance, is it really too late for Democrats to do anything about it? We’re breaking down what the leak said and some possible avenues for it to be reversed.
First, what did the draft say?
In a 98-page opinion entitled “1st Draft,” Justice Samuel Alito concludes that the U.S. Constitution doesn’t specifically mention abortion rights, and therefore Roe v. Wade has been “egregiously wrong from the start.”
“The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions,” Alito writes.
If Alito’s argument is accepted, it would mean that the court would rule in favor of a Mississippi law that bans abortions after 15 weeks of pregnancy. This type of restriction has long been rendered unconstitutional under Roe v. Wade, and the subsequent Planned Parenthood v. Casey case, which said states couldn’t put an undue burden on the right to abortion before fetal viability (which is generally thought to be around 22 to 24 weeks).
Fellow conservative justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett have all reportedly sided with Alito in the majority opinion, and if this is made official, state legislatures would be left to determine their own abortion policies.
As for the remainder of the court, liberal justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan are crafting either one or more dissents, according to Politico. But it remains unclear how Chief Justice John Roberts will ultimately vote and whether he’ll join the written opinion or write his own. Even though Roberts was appointed by Republican President George W. Bush in 2005, he has become the court’s swing vote in recent years and sided with the court’s liberal wing at times, such as becoming the deciding vote to uphold Obamacare in 2012.
Could the court change course?
As Politico notes, the leaked version of the opinion was originally drafted on Feb. 10, so there may be changes by the time it becomes public.
Attorney Paul Summers, who served as a judge on the Tennessee Supreme Court, says deliberations on controversial cases like these are especially fluid, and they “can be edited and changed many times,” sometimes right up until a decision is officially made the law of the land.
Summers also adds that the leak and divisive nature of the ruling may cause the court to go ahead and deliver its opinion sooner rather than later. While all cases are typically decided before the court takes its summer recess, there aren’t exactly any rules around when decisions must be released.
But the circulation of draft opinions like Alito’s is completely routine among the justices and is part of a much larger process of making a final ruling. Typically, after hearing oral arguments, justices hold private conferences to actually decide the case, votes are tallied, and then various justices are assigned to write the case based on who’s in the majority. After these draft opinions are passed around, a majority must officially “sign onto” the court’s opinion before it can be delivered to the public.
Will public outrage from the leak have any influence on the court?
Shortly after the leaked abortion ruling, thousands of demonstrators gathered outside the Supreme Court to protest the likely decision to overturn Roe v Wade. But how do Americans really feel about abortion? While the level of support varies on several factors like age, a majority — or 54 percent — of Americans think the 1973 decision should be upheld, compared to 28 percent who believe it should be overturned, according to a Washington Post-ABC News poll.
Still, some legal experts say public outrage over news of the impending decision won’t impact the court’s decision whatsoever because that could be seen as undermining the court’s reputation of impartiality.
“For the court to now buckle in any way or bend in response to public backlash would be for them confirmation of a lack of integrity, and so I just don’t see them going in a different direction. It’s still possible, but very unlikely,” says Tulane law professor David Meyer, who previously served as a law clerk for the late U.S. Supreme Court Justice Byron R. White.
Alito himself already preemptively addressed the impact that decision could have on public discourse — even before the leak — in his draft. “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.
Is it still possible to codify Roe v. Wade?
Congressional Democrats are making a last-ditch effort to protect abortion rights. Senate Majority leader Chuck Schumer plans to hold a vote next week on the Women’s Health Protection Act, which would enshrine these protections in U.S. law. If passed (emphasis on if), it would supersede the expected Supreme Court ruling overturning Roe v. Wade.
But this procedural vote is already looking like it’s doomed to fail. Democrats are currently blocked from advancing the legislation due to a filibuster rule that requires 60 votes to move forward.
This roadblock has prompted progressives like Sen. Bernie Sanders to call for the end of the filibuster, but this move doesn’t seem likely, given that some of the key legislators whose support would be essential, including Democratic Sen. Kyrsten Sinema and Republican Sen. Susan Collins, oppose changing this threshold. And even if the Women’s Health Protection Act was somehow passed and signed into law, Doron Kalir, who is a professor of law at Cleveland-Marshall College, told California affiliate ABC-10 it would likely be challenged in lower courts before making its way to the Supreme Court.
As the country anxiously awaits that final decision, advocates are emphasizing that abortion rights are still federally protected.
“We have been preparing for this. We’re ready for this fight. Abortion is still legal and we will continue to fight across the country — this will not stop us,” Planned Parenthood tweeted in reaction to the news.
