Supreme Court draft leak rocks US

May 04, 2022 04:40 AM IST

It’s unclear if the draft represents the court’s final word on the matter — opinions often change during the drafting process.

Washington: Declaring that the right to abortion is “not deeply rooted in the nation’s history and traditions”, the US Supreme Court appeared set to overturn the historic Roe v Wade verdict of 1973 that legalised abortion nationwide, according to a leaked draft of the majority opinion reported by the news site Politico.

People protest for and against abortion rights outside of the U.S. Supreme Court building in Washington, D.C., U.S. October 4, 2021. (REUTERS)
People protest for and against abortion rights outside of the U.S. Supreme Court building in Washington, D.C., U.S. October 4, 2021. (REUTERS)

Also Read | Decoding the abortion tussle as Roe v Wade likely to be overturned

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The draft majority opinion, in response to an ongoing case on a restrictive Mississippi law that banned abortion after 15 weeks, was written by Justice Samuel Alito. It is reportedly backed by four other conservative judges, all nominated by Republicans, while three judges nominated by Democratic administration - Stephen Breyer, Sonia Sotomayor and Elena Kagan -are expected to dissent from the opinion.


The stand that Chief Justice John Roberts - a Republican nominee who in the past has adopted a more centrist position than his conservative colleagues – will take was not clear.

Even as the SC confirmed the authenticity of the document, the draft prompted a strong response by President Joe Biden, who warned against overturning Roe v Wade and said women’s right to choose is “fundamental”.

Also Read | Joe Biden says woman's right to choose fundamental amid row over SC ‘opinion’ on abortion

In a statement, the court said justices often circulate draft opinions as routine and essential part of court’s confidential deliberative work. “Although the document described in yesterday’s documents is authentic, it does not represent a decision by the court and a final decision by any member on the issues in the case,” it said.

Chief Justice John Roberts termed the leak a “singular and egregious breach of trust”, claimed that the “betrayal of confidences” would not affect the integrity of the court’s operations, and announced a probe into the source of the leak.

Drafts, according to close observers of the court, are often circulated to serve as the basis for negotiations and consultations among judges. But in this case, the leaked draft both provides a sense of the arguments that may be used to justify the rollback of Roe v Wade and the balance of power in the court which will enable the decision.

Also Read | Roe v Wade to be scrapped? A look at the world's toughest abortion laws

“Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences, the draft says, according to Politico. “And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

In its 1973 Roe v Wade verdict, the SC had the held that women had a fundamental right to whether to terminate her pregnancy and located it within the right to liberty and privacy. But it had said that the right was not absolute and held that it must be balanced against other interests such as protecting the mother’s health and life of the foetus.

The court created a framework where during the first trimester the state could not impose any restriction on abortions. In the second trimester, it allowed states to impose narrow restrictions but only to protect the mother’s health. In the third trimester — which the court saw as the stage when the foetus becomes viable — the court allowed for legal prohibition of abortions.

In a subsequent case, Planned Parenthood v Casey, in 1992, the court upheld the right to abortion, but abandoned the trimester framework and prioritised the idea of foetal viability.

“We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision,” the leaked draft said.

“We therefore hold that the Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.”

This is the first time that an opinion of the court on a pending case has been leaked prior to the formal verdict. While it may change, the draft opinion is in line with many observers expected given the composition of the court.

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    Prashant Jha is the Washington DC-based US correspondent of Hindustan Times. He is also the editor of HT Premium. Jha has earlier served as editor-views and national political editor/bureau chief of the paper. He is the author of How the BJP Wins: Inside India's Greatest Election Machine and Battles of the New Republic: A Contemporary History of Nepal.

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