In an apparent, extraordinary leak, Politico has posted a draft opinion from the United States Supreme Court overturning Roe v. Wade. A published opinion of the Supreme Court constitutes its decision in a case. The Supreme Court’s ordinary practice is for opinions to be drafted in secret. Only when the opinion is published and final (although minor edits can still occur) is it released to the public. Once that occurs, judgment is soon entered in the case.
This is the first time I have ever heard of a leak of an actual draft opinion while it is being drafted. On occasion, leaks about the contents of opinion surface, but often these only occur after the final opinion is published. Here, what appears to be a draft opinion has been leaked to the public while the case remains under consideration.
Justice Samuel Alito writes that “Roe and Casey [a later case upholding much of Roe] must be overruled on page five of that draft opinion.” His opinion explains that 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.”
Court opinions are written by a Justice in the majority. In this case, it appears that Justice Alito and four other Justices have voted to overturn the previous constitutional rulings permitting abortion. Since it is Justice Alito writing such a controversial opinion, it would appear that Chief Justice John Roberts is not in the majority. Otherwise, he would presumably assign the opinion to himself. Instead, Justice Clarence Thomas, as the most senior justice in the majority, appears to have assigned this opinion to Justice Alito.
Justices Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett also seem to have joined this opinion (since it is unlikely Justices Stephen Breyer, Sonia Sotomayor or Elena Kagan would join it, based on their prior writings). Many will recall recent Supreme Court confirmation hearings in which some of these nominees were asked about whether they would vote to overturn Roe and Casey. Generally, they refused to answer, but they also said they considered Roe and Casey precedents to be respected. Those ambiguous answers were then cited as reasons for whether to confirm the nominee. For instance, Senator Susan Collins of Maine claimed, in her vote to confirm Justice Kavanaugh, that she believed he would respect abortion rights and not overturn Roe and Casey. If this draft opinion does not substantially change from the Court’s final ruling in this case, she will have been proven wrong.
The practical effect of this ruling will be to permit states to ban abortion entirely. Presumably, abortion will remain legal in some states. It will also be outlawed in others. On page 67 of Justice Alito’s draft opinion, he writes that his outcome is just as the Constitution intended, since it will “return th[e] authority [to regulate abortion] to the people and their representatives”.