Social media was quickly afire Monday night after an unprecedented leak showed the U.S. Supreme Court has circulated a draft opinion that would overturn two key abortion rights precedents.
The draft acquired by Politico was written by Justice Samuel Alito, and would overturn Roe v. Wade and Planned Parenthood v. Casey. The decision would cap off Mississippi’s defense of its ban on abortions after 15 weeks of pregnancy, a case that eventually morphed into a call to overturn the two landmark decisions.
“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,” according to the draft opinion that was circulated on Feb. 10 based on the date stamped on it. “That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’”
The decision quickly lit up social media as legal experts chimed in on the ramifications of such a leak from the nation’s high court, as well as how any decision may affect the court’s legitimacy. While draft opinions, and the final votes, can change, some court watchers were quick to ask why a February draft was leaked, assuming a more recent draft has been circulated.
Here’s a look at what the legal industry is saying:
>> Laurence Tribe, Harvard Law School: “If the Alito opinion savaging Roe and Casey ends up being the Opinion of the Court, it will unravel many basic rights beyond abortion and will go further than returning the issue to the states: It will enable a GOP Congress to enact a nationwide ban on abortion and contraception.” (Twitter)
>> Daniel Epps, Washington University at St. Louis School of Law: “My guess is there’s about to be a serious inquisition at the Court as the Chief tries to figure out who leaked. Worth noting, though, that draft majority opinions are circulated before Justices have 100% agreed to what they contain. There would have been an initial vote but a lot could be uncertain until much later in the process. One thing that’s weird is that the draft is dated from February. That suggests it may have been the first circulated draft. Surely there have been multiple new versions of the opinion circulated in the building since Feb. So why is the February version leaking now?” (Twitter)
>> Aderson Francois, Georgetown University Law Center: “Is that the gravest sin, though? Is it really?” Replying to @SCOTUSblog: “It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin.” (Twitter)
>> Eric Segall, Georgia State University College of Law: “Either the biggest leak in history or the end of Politico. If true, the arrogance spills off the page, which is par for the course.” (Twitter)
>> Steve Vladeck, University of Texas School of Law: “This is an earthquake—for what it portends for the future not only of Roe, but of *all* implied fundamental rights, and for the stunning breach of the court’s norms of confidentiality. And whatever you think of the leak, the former has *everything* to do with the latter.” (Twitter)
>> California Gov. Gavin Newsom: “This draft opinion is an appalling attack on the rights of women across this country and if it stands, it will destroy lives and put countless women in danger. It will be the end of fundamental constitutional rights that American women have had for nearly 50 years. This is not an isolated incident, and it is not the end. We have a Supreme Court that does not value the rights of women, and a political minority that will stop at nothing to take those rights away.” (Statement)
>> Neal Katyal, Hogan Lovells: “This opinion says states can criminalize abortion, with no rape or incest exception. It is exactly the hardline position I’ve been saying the court is going to impose for the last 3 years. It will set women back in profound ways. Congress must act ASAP.” (Twitter)
>> Jeffrey Wall, Sullivan & Cromwell: “Today should have been dedicated to remembering Justice Stevens, and instead we’re left to ponder how much damage this breach of trust will do to the court as an institution.” (Twitter)
>> Ilya Shapiro, George Town Law Center and formerly with the Cato Institute: “The leak is inexcusable and threatens the court’s functioning. The most plausible explanation is that it’s someone on the left engaged in civil disobedience—so yet again it’s those who bemoan the ‘loss of norms’ who break them. Cf. court-packing, attacking legitimacy, etc.” (Twitter)
>> Rick Hasen, University of California, Irvine School of Law: “One thing to keep in mind here: some may say this SCOTUS leak benefits those who oppose overturning Roe. But it actually helps the majority that overturns by (1) deflecting commentary to breach of court secrecy norms and (2) lessening the blow by setting expectations.” (Twitter)
>> Mississippi Attorney General Lynn Fitch: “We’ll let the Supreme Court speak for itself and wait for the court’s official opinion.” (Statement)
>> Anthony Romero, executive director, American Civil Liberties Union: “If the Supreme Court does indeed issue a majority opinion along the lines of the leaked draft authored by Justice Alito, the shift in the tectonic plates of abortion rights will be as significant as any opinion the Court has ever issued. It would deprive half the nation of a fundamental, constitutional right that has been enjoyed by millions of women for over 50 years. The breach in protocol at the Court pales in comparison to the breach in constitutional freedoms that the Court is charged with upholding. However the decision ultimately comes down, the ACLU will never stop fighting for a person’s right to choose when and if to have a child.” (Statement)
>> Sarah Lipton-Lubet, executive director, Take Back the Court Action Fund: “Not only does the Supreme Court’s conservative majority appear poised to gut Roe v. Wade and cut off millions of people’s access to abortion care—it seems eager to do so as cruelly and vindictively as possible. This draft opinion makes crystal clear that the only way to protect our rights is to expand the court.” (Statement)
>> Ed Whelan, Ethics & Public Policy Center: “Given the leak, the court should go ahead and issue the majority opinion as soon as it is final. Dissenters can issue their opinions later.” (Twitter)
>> Harry Litman, former U.S. attorney: “A debasing day for the court as well, starting with the leak but not ending there. The opinion is repeatedly arrogant and pinched in portraying Roe and Casey as singular aberrations, as if this is Brown v Board overturning Plessy. The law and the legal profession will not agree.” (Twitter)
>> Jonathan Turley, George Washington University Law School: “The most likely motivation is obviously to pressure the court and push the legislation in Congress on a federal abortion law before the midterm elections. It will also likely renew the call for court packing.” (Twitter)
Marcia Coyle, Nate Robson, Andrew Goudsward and Cheryl Miller contributed to this report.
