Majority of Supreme Court is ready to strike down Roe v. Wade, leaked opinion shows

But the disclosure Monday by Politico of a draft opinion it said was circulated by Justice Samuel A. Alito Jr. was an extreme breach of modern Supreme Court protocol. The story said that after oral arguments Alito, along with Justices Clarence Thomas and all of three of President Donald Trump’s nominees to the court — Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — voted to overturn the precedent.

That doesn’t necessarily mean it is the final word on what the court will say when it decides the Mississippi case this term, which will end in late June or early July. Drafts of opinions are circulated to try to convince other justices as well as serving as a document justices can endorse. And the leak could be calculated to spur the court to move in another direction.

But there was no reason to believe that the detailed document Politico said it obtained was illegitimate.

“The Court has no comment,” Supreme Court public information officer Patricia McCabe said in an emailed statement.

In the draft opinion published by Politico, Alito said Roe was wrongly decided, and that it had inflamed rather than united public opinion over the contentious issue.

“We hold that Roe and Casey must be overruled,” said the document, which Politico said was labeled a draft “Opinion of the Court.” Planned Parenthood v. Casey, decided in 1992, affirmed the court’s findings in Roe. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

In the draft, Alito reportedly discounts concerns about overruling longstanding precedent. The legal principle known as stare decisis “does not compel unending adherence” to what he writes is “Roe’s abuse of judicial authority.”

The draft says Roe was “egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issues, Roe and Casey have enflamed debate and deepened division.”

The draft asserts that overturning Roe would not jeopardize other rights, such as the right to contraception, protection of homosexual sex and same-sex marriage.

“We emphasize that our decision concerns the constitutional right to abortion and no other right,” Alito writes. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

That would be disputed by the court’s liberals.

The decision about whether to overturn Roe is one of the most controversial the court has faced in years, but still there was shock over the Politico disclosure.

It follows an editorial in the conservative opinion section of the Wall Street Journal last week that seemed to warn that Chief Justice John G. Roberts Jr. was trying to turn the vote of one of the conservative justices to avoid something as dramatic as overturning Roe. The piece cited no source for its speculation.

Neal Katyal, a former acting solicitor general who was a law clerk to Justice Stephen G. Breyer, said the draft opinion appears legitimate and suggests there was a preliminary vote after oral argument in December in favor of fully overturning Roe.

He compared the leak to that of the Pentagon Papers, the secret report on U.S. policy in Vietnam decades ago. “It’s possible the Court could pull back from this position, but this looks like they voted that way after the oral argument,” he tweeted.

But such was the force of the report that politicians began issuing statements about the future of abortion rights, and crowds gathered at the Supreme Court during the night.

One group was yelling “Abortion is violence,” while another chanted “abortion is health care!”

The report suggesting Roe’s impending demise sparked immediate reactions on Capitol Hill, with many on the left calling for legislative action to preserve abortion rights nationally.

“Congress must pass legislation that codifies Roe v. Wade as the law of the land in this country NOW,” Sen. Bernie Sanders (I-Vt.) wrote on Twitter Monday night, calling for an end to the Senate’s filibuster rule to enact such a bill with a simple majority.

In fact, a Democratic bill that would have done just that garnered only 46 votes in February, thanks to the opposition of Sen. Joe Manchin III (D-W.Va.) and the absences of several other Democrats.

While it is possible a narrower bill could attract some GOP moderates such as Sen. Susan M. Collins (Maine) and garner a majority, attempts to eliminate the 60-vote supermajority threshold have persistently fallen flat in the current Senate, which is split 50-50 between the party caucuses.

The more immediate practical effect played out on the campaign trail, where Democratic candidates have seen the impending abortion ruling as potential game-changer in races where they have been on the defensive due to a fraught economy and unpopular president.

Multiple Democratic Senate candidates issued statements Monday night calling on Congress to act to protect Roe. “We have had almost 50 years to codify Roe into law, we can’t afford to wait one more day,” said Wisconsin State Treasurer Sarah Godlewski, who is running to unseat Sen. Ron Johnson (R-Wis).

Sen. Patty Murray (D-Wash.), who was first elected to the Senate in 1992, months after the Supreme Court’s last landmark abortion decision, called it a “break the glass” moment in a statement Monday.

“It’s not happening to someone else, in some other state — it’s happening everywhere, and the highest court in the land is preparing to rip away your rights at this very moment,” she said. “We need to fight back with everything we’ve got right now.”

Ann E. Marimow, Joe Heim, Caroline Kitchener and Katy Burnell Evans contributed to this report.