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Leaked SCOTUS Draft Ending “Roe” Argues Abortion Isn’t Part of US History

The Supreme Court will make its official ruling on abortion rights sometime in the next couple of months.

Activists in support of and against abortion rally outside the U.S. Supreme Court on May 2, 2022, in Washington, D.C.

The United States Supreme Court is poised to undo nearly half a century of precedent protecting the right to abortion throughout the country, according to a leaked draft opinion written by one of its conservative justices.

On Monday evening, Politico reported that it had received a copy of a draft opinion written by Justice Samuel Alito, an ardently anti-abortion justice who was appointed by former President George W. Bush. The document, which was drafted in February, is labeled as a first draft of the majority opinion of the Court.

Politico cautioned that the draft opinion may not necessarily be the final ruling of the Court. “Deliberations on controversial cases have in the past been fluid,” the publication stated. “Justices can and sometimes do change their votes as draft opinions circulate and major decisions can be subject to multiple drafts and vote-trading, sometimes until just days before a decision is unveiled.”

Yet according to a source that spoke with them, Politico reported that at least five conservative justices of the Court were still committed to supporting Alito’s draft opinion as of this week.

The justices heard oral arguments on the case in question, Dobbs v. Jackson, in December, after the state of Mississippi instituted a 15-week ban on abortion. In their deliberations, the state’s conservative counsel sought to overturn a previous ruling from the High Court, Roe v. Wade, which was decided in 1973 and recognized abortion as a fundamental right for residents in every state in the nation.

Alito’s draft opinion, however, overturns that decision, stating that it was “egregiously wrong from the start.”

“We hold that Roe and Casey” — another subsequent Supreme Court ruling that recognized abortion rights but placed new restrictions on them — “must be overruled,” Alito wrote. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

The ruling, if it is indeed the final decision of the Court, would remand “authority to regulate abortion” to state governments, Alito added. Currently, 22 states have statutes that would ban abortion right after a Supreme Court decision overturning Roe.

Originally, the Court, through its decision in Roe, made abortion access the law of the land through a penumbra of rights mentioned in the Constitution — including the 14th Amendment’s Due process clause and the Ninth Amendment’s recognition of additional rights that exist but were not necessarily enumerated in the document. Alito’s ruling contradicts that decision, stating, in part, that Roe should be overturned because the Constitution doesn’t make an explicit statement saying abortion is a protected right. His opinion further errantly states that the right to an abortion is not “deeply rooted” in our nation’s history while in fact, abortion was widely practiced in the U.S. from the 18th century until its criminalization in 1880.

Moreover, as Slate senior writer Mark Joseph Stern noted after the draft ruling was published, Alito’s ruling also suggests that other more recent decisions from the Court — including the recognition of marriage equality and even a ruling from two decades ago barring states from banning or regulating same-sex relationships — were errantly decided.

“He says that, like abortion, these decisions protect phony rights that are not ‘deeply rooted in history,'” Stern tweeted.

Several social media users also noted that the same reasoning Alito made in his draft ruling could be used to dismantle the rights to birth control, which were recognized in Griswold v. Connecticut, a 1965 Supreme Court ruling that also relied upon the penumbra of rights argument.

Following the announcement of the draft opinion’s findings, several abortion rights activists spoke out against it, urging action should the Court undo Roe and even before it had the chance to affirm Alito’s order as law.

“It’s past time to vote out every official who stands against the pro-choice majority,” tweeted Laphonza Butler, president of Emily’s List.

Writer and feminist Roxane Gay lamented the Alito draft order, noting that it disrespected basic rights on human autonomy.

“What do you say when nine people can dictate what happens to your body? It’s ridiculous and hateful,” Gay said. “The court clearly wants to deepen the political crisis in this country and women will pay the price.”

Author Mona Eltahawy recognized the underlying causes of Alito’s draft ruling, adding that other rights could soon be under attack, too, if it is indeed the eventual opinion of the Court.

“Unless the United States develops the stomach for a long-overdue reckoning with the white supremacist Christian theocracy that has been unabashed in its destruction of #RoeVsWade, abortion rights will not be the only rights it destroyed,” she said.

Hours after the report from Politico was published, abortion activists flocked to the Supreme Court building in Washington, D.C. to protest the draft opinion. According to organizer Vincent Vertuccio, thousands demonstrated against the impending decision.

Demonstrators could be heard banging drums and chanting slogans, including “Abortion is health care” and “My body, my choice,” outside the building well into the evening.

If the Court indeed upends the protections for abortion that were laid out in Roe v. Wade, it’s likely the issue will become a massive one for the midterm elections and Democrats may well seek to capitalize on it. However, many activists (and even some politicians, such as Vermont Independent Sen. Bernie Sanders) are calling on the party to act now — to dismantle the filibuster and pass abortion rights protections, essentially codifying Roe, through legislation. A current bill on the matter, however, was blocked earlier this year by Republicans and moderate Sen. Joe Manchin (D-West Virginia).

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