U.S. Supreme Court leak probe ordered, protesters gather over potentially seismic abortion ruling

U.S. President Joe Biden said he will fight to preserve access to abortion services, while the chief justice of the Supreme Court ordered an investigation after an unprecedented leak suggested that the top court may overturn the 1973 Roe v. Wade ruling that legalized abortion.

A leaked initial draft majority opinion suggests the court has voted to overturn Roe v. Wade, Politico reported late Monday.

“Roe was egregiously wrong from the start,” conservative Justice Samuel Alito wrote in the draft opinion, which is dated Feb. 10, according to Politico, which posted a copy.

Abortion is one of the most divisive issues in U.S. politics and has been for nearly a half century. The news broke a little more than six months before midterm elections that will determine if Democrats hold their razor-thin majorities in the U.S. Congress for the next two years of President Joe Biden’s term.

Biden called it a potentially “radical” decision in American jurisprudence, one that could have ramifications for other privacy rights involving contraception and gay rights.

“It goes far beyond, in my view, it goes far beyond the concern of whether there’s the right to choose,” he told reporters before departing for a visit to Alabama.

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In an earlier statement, the White House said it “will be ready when any ruling is issued.”

“At the federal level, we will need more pro-choice senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law,” the statement attributed to Biden said.

WATCH | Biden laments possible Roe v. Wade overturn, says it would be ‘profound’ shift:

Biden says overturning Roe v. Wade would be ‘radical’

U.S. President Joe Biden says a whole range of rights would be thrown into question if the Supreme Court acts on a new draft opinion to overturn the 1973 Roe v. Wade ruling that legalized abortion. 1:59

To reporters, Biden said he wasn’t prepared now to make a judgment on whether the Senate filibuster on legislation intended to protect abortion rights — which requires a 60 per cent threshold for votes instead of a simple majority — should be overturned

Chief Justice John Roberts confirmed the draft as authentic in a statement, calling the leak a “singular and egregious breach.” Roberts said he had ordered the Marshal of the Supreme Court to initiate an investigation.

“To the extent this betrayal of the confidences of the court was intended to undermine the integrity of our operations, it will not succeed. The work of the court will not be affected in any way,” Roberts said.

Biden said he had been informed the draft was authentic but that he had been informed that, “it doesn’t represent who’s going to vote for it yet.”

“I hope there are not enough votes for it.”

Would have ‘tragic consequences’: Democrat

Within hours of the news, anti-abortion activists chanting “hey, hey, ho, ho, Roe v. Wade has got to go” and abortion rights supporters shouting “abortion is health care” were facing off outside the Supreme Court.

Protester Annie McDonnell, 19, a student at George Washington University, said, “The first line in the draft is that this is a moral issue. If it’s a moral issue, you shouldn’t be depriving us of our choice.”

“Justices get out of my vagina,” said one protest sign.

The unprecedented leak sent shock waves through the United States.

Michigan Democratic Sen. Gary Peters echoed that sentiment, arguing it “will result in very real and tragic consequences for people from all walks of life.”

Many Republican members of Congress seemed more engaged by the leak.

WATCH | Draft opinion suggests U.S. Supreme Court set to overturn Roe v. Wade:

Senate Minority Leader Mitch McConnell called it a “stunning breach” in a statement.

“The Chief Justice must get to the bottom of it and the Department of Justice must pursue criminal charges if applicable,” he said.

Missouri Sen. Josh Hawley argued that if a law clerk leaked it, they should be disbarred. Hawley added that, if true, the leaked opinion was “voluminously researched, tightly argued and morally powerful.”

Several states have ‘trigger’ laws

The ruling would be the court’s most sweeping since former president Donald Trump succeeded in naming three justices to the court, cementing a 6-3 conservative majority.

The draft decision appeared to be based on an oral argument in December on Mississippi’s bid to revive its ban on abortion starting at 15 weeks of pregnancy, a law blocked by lower courts.

The Politico report said a court majority was inclined to uphold Mississippi’s abortion ban and that there could be five votes to overturn Roe. An official ruling is expected before the end of June.

Four of the other Republican-appointed justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — voted with Alito in the conference held among the justices, it added.

After an initial vote among the justices following an oral argument, one is assigned the majority opinion and writes a draft. It is then circulated among the justices.

Protesters sit outside the U.S. Supreme Court in Washington, D.C., on Tuesday after the leak of a draft majority opinion written by Justice Samuel Alito preparing for a majority of the court to overturn the landmark Roe v. Wade abortion rights decision later this year. (Evelyn Hockstein/Reuters)

At times, in between the initial vote and the ruling being released, the vote alignment can change. 

Numerous Republican-led states have passed various abortion restrictions in defiance of the Roe precedent in recent years, as well as so-called trigger laws, which would kick in and automatically ban abortions if the Supreme Court sides with abortion opponents.

If Roe is overturned, abortion is likely to remain legal in liberal states. More than a dozen states have laws protecting abortion rights.

California has previously said it would look to find more ways to accommodate out-of-state individuals seeking an abortion if the law is overturned.

“We can’t trust SCOTUS to protect the right to abortion, so we’ll do it ourselves,” California Gov. Gavin Newsom said on Twitter, referring to the Supreme Court.

Would run counter to global trend

Based on Alito’s opinion, the court would find that the Roe v. Wade decision that allowed abortions performed before a fetus would be viable outside the womb — between 24 and 28 weeks of pregnancy — was wrongly decided because the U.S. Constitution makes no specific mention of abortion rights.

“Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each state from regulating or prohibiting abortion,” Alito said, according to the leaked document.

The Roe v. Wade decision recognized that the right to personal privacy under the U.S. Constitution protects a woman’s ability to terminate her pregnancy.

The 1973 ruling helped mobilize Christian leaders angered by the ruling, leading to the formation of politically active organizations such as the Family Research Council and Focus on the Family.

Derenda Hancock, co-organizer of the Pinkhouse Defenders, is shown on Tuesday. The group are volunteers who shield and escort patients entering the last remaining clinic to perform abortions in Mississippi, where the case before the Supreme Court originated. (Rogelio V. Solis/The Associated Press)

The Guttmacher Institute, a pro-choice research group, has estimated that about half of all U.S. states would ban abortion if they had the legal backing to do so. In 2019, the group said abortions were at their lowest level since Roe v. Wade, due to a declining birth rate, expanded insurance coverage for contraception and the increased use of medications that can terminate pregnancies.

A 2021 poll by the Pew Research Center found that 59 per cent of U.S. adults believed it should be legal in all or most cases, while 39 per cent thought it should be illegal in most or all cases.

Should the top court offer an opinion consistent with the Politico report, the U.S. would be bucking a global trend. In a report in late 2019, the Council of Foreign Relations documented about 30 examples of countries this century that have expanded access to abortion services, with just the U.S. and a handful of others tightening restrictions.

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