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‘Draft opinion’ on US abortion rights authentic document but not a final decision - chief justice

The draft opinion would allow individual states to more heavily regulate or outright ban abortion.

A pro-choice rally in the US (file photo)
A pro-choice rally in the US (file photo)
Image: PA Images

Updated May 3rd 2022, 5:57 PM

US SUPREME COURT Chief Justice John Roberts has said a draft opinion on abortion leaked to the press was authentic, but not the final decision on the matter.

In a statement, Roberts said he had directed the marshal of the court to launch an investigation into the source of the leak, seen as an extraordinary violation of institutional protocol.

According to the political news organisation Politico – who published the “leaked document” – the draft opinion shows the court voted to strike down the landmark case. 

While the consequences of such a ruling reverberated, the method of how the draft, written by Justice Samuel Alito, came into public view has drawn fierce criticism.

Several Republican lawmakers accused liberals of orchestrating the leak in order to incite unrest and sway the opinion of justices, and demanded a comprehensive investigation by President Joe Biden’s administration.

“To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed,” Roberts said.

“Court employees have an exemplary and important tradition of respecting the confidentiality of the judicial process and upholding the trust of the Court,” the chief justice added.

“This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here.”

The document published by Politico was labelled “1st Draft” of the “Opinion of the Court” and was reportedly in reference to a case challenging Mississippi’s ban on abortion after 15 weeks – a case known as Dobbs v Jackson Women’s Health Organisation.

The Supreme Court has yet to issue a ruling in the case, and opinions — and even justices’ votes — have been known to change during the drafting process. The court is expected to rule on the case before its term is up in late June or early July.

The draft is signed by Justice Samuel Alito, a member of the court’s 6-3 conservative majority, who was appointed by former President George W Bush.

“Roe was egregiously wrong from the start,” the draft opinion states.

“We hold that Roe and Casey must be overruled,” it adds, referencing the 1992 case Planned Parenthood v Casey that affirmed Roe’s finding of a constitutional right to abortion services but allowed states to place some constraints on the practice.

“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

The draft opinion in effect states there is no constitutional right to abortion services and would allow individual states to more heavily regulate or outright ban abortion.

Politico said that it received “a copy of the draft opinion from a person familiar with the court’s proceedings in the Mississippi case along with other details supporting the authenticity of the document”.

The report came amid a legislative push to restrict abortion in several Republican-led states — Oklahoma being the most recent — even before the court issues its decision. Critics of those measures have said low-income women will disproportionately bear the burden of new restrictions.

The leak jumpstarted the intense political reverberations that the court’s ultimate decision was expected to have in the midterm election year. Already politicians on both sides of the aisle were seizing on the report to fundraise and energise their supporters on either side of the issue.

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Until now, the court has allowed states to regulate but not ban abortion before the point of viability, around 24 weeks.

Biden’s response

President Joe Biden commented by saying that he believes “a woman’s right to choose is fundamental” and that the law should not be overturned. 

He said that he directed his Gender Policy Council and White House Counsel’s Office to prepare options for and Administration response to “the continued attack on abortion and reproductive rights”, and “we will be ready when any ruling is issued”.

“If this decision holds, it’s really quite a radical decision,” Biden told reporters in Washington as he departed on a trip to Alabama.

“It concerns me a great deal that we’re going to, after 50 years, decide a woman does not have a right to choose,” he said.

“But even more, equally profound is the rationale used. It would mean that every other decision relating to the notion of privacy is thrown into question.”

Additional reporting by AFP

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