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The Supreme Court has voted to strike down Roe v. Wade, the landmark decision that legalized abortion in the United States, a bombshell report revealed on Monday.
The news sent shock waves throughout Washington D.C. with Democrats vowing to codify the legal right to an abortion into law and Republicans demanding an investigation into the leak, claiming it was done to try and influence the high court ahead of its formal ruling.
Perhaps anticipating backlash, the Supreme Court building initially was barricaded Monday night before being watched by security.
Protesters eventually headed toward the gates in large numbers, with some standing up and chanting, while others sat outside the building and lit candles in silence. A small number of counter-protesters also gathered.
The draft opinion – originally obtained by Politico – was written by Justice Samuel Alito, one of the six justices appointed by Republican presidents on the nine-member court, repudiating both Roe and the 1992 Planned Parenthood vs. Casey decision.
‘Roe was egregiously wrong from the start,’ Alito writes in the draft opinion, which was crafted in February and circulated among the court members. ‘We hold that Roe and Casey must be overruled,’ he continues in the document, titled ‘Opinion of the Court.’
‘It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.’
Politico noted that this is the first such case in modern history of a Supreme Court draft decision being leaked to the public while the case was still pending.
The draft document is not final until the court formally announces its decision in a case, meaning the ruling could still be changed. Sometimes drafts are circulated by one justice in the hopes of swaying fellow judges. The court is expected to issue its final ruling before its term is up in late June or early July.
That led to speculation the Alito draft was leaked ahead in the hopes public outrage could temper the court’s decision.
The court, notably, did not deny the legitimacy of the draft opinion. A spokesperson for the Supreme Court said: ‘The Court has no comment.’
Republican appointed-Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett all voted to strike down Roe with Samuel Alito, Politico noted
The beginning of the original leaked draft opinion written by Justice Samuel Alito
Protesters gather, chant and hold signs outside the Supreme Court in Washington Monday night
Lights burn inside U.S. Supreme Court offices late at night after the leak of a draft majority opinion written by Justice Samuel Alito
There were smaller gatherings of anti-abortion protesters at the event as well
Politico executive editor Dafna Linzer sent a note to staff after the story posted, expressing confidence in the story and their verification of the draft opinion.
‘After an extensive review process, we are confident of the authenticity of the draft. … We take our responsibilities to our readers with the greatest seriousness,’ she noted.
Politico posted the entire draft opinion online.
If Alito decision is adopted, it would return the issue of abortions to the states.
About half of the 50 states are set to immediately impose broad abortion bans. Any state could still legally allow the procedure.
‘There are lots of signals the opinion is legit,’ wrote Supreme Court attorney Neal Katyal on Twitter. ‘The length and depth of analysis, would be very hard to fake. It says it is written by Alito and definitely sounds like him. It’s 60+ pages long.’
‘Roe was egregiously wrong from the start,’ Alito writes. ‘We hold that Roe and Casey must be overruled,’ he continues in the document, titled ‘Opinion of the Court’
Some people held vigil silently outside the court in the nation’s capital Monday evening
The opinion draft – originally obtained by Politico – was written by Justice Samuel Alito, one of the six justices appointed by Republican presidents on the nine-member court
Politico reports that four of the five remaining Republican-appointed justices voted with Alito in December, after hearing oral arguments on a Mississippi abortion case. And that line-up remains unchanged as of this week.
Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett all voted to strike down Roe.
Democrat-appointed justices Stephen Breyer, Sonia Sotomayor and Elena Kagan are working on dissents.
What remains unclear his how Chief Justice John Roberts, appointed by George W. Bush, will vote. Sources told CNN that he would’ve dissented with the liberals on Alito’s opinion draft.
But if the justices stand firm, it would not matter how Roberts votes as five back the Alito draft opinion.
Draft opinions can change and the ruling will not be final until it is published.
If the Alito draft is adopted, it would rule in favor of Mississippi in Dobbs v. Jackson Women’s Health Organization – a case involving the state’s attempt to ban most abortions after 15 weeks of pregnancy.
The draft opinion runs 98 pages, including a 31-page appendix of historical state abortion laws, Politico notes in its report. The document is replete with citations to previous court decisions, books and other authorities, and includes 118 footnotes. The appearances and timing of this draft are consistent with court practice.
Politico said only 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.’
Katyal described how the Supreme Court handles its decision making process.
‘After oral argument the Justices take a tentative vote. This would have happened in December. The senior most justice in the majority gets to assign the opinion. That might have been Roberts, but doubtful since Alito wrote this draft,’ he noted on Twitter.
‘Now, once the draft is circulated, the justices in dissent will write an opinion. That’s presumably happening now. But the tenative vote seems strong, and Chief Justice Roberts is irrelevant if the 4 + Alito hold with their tentative votes,’ he added.
Pro-abortion rights protesters react outside the U.S. Supreme Court
One person holds up a signing expressing their dissent on the possible ruling
The unprecedented leak has likely shaken the Supreme Court to its core.
Barricades were being posted around the building shortly after the report was posted online. Posts to social media showed people gathering at the metal fencing, holding candles in vigil.
The hightly-respected SCOTUSblog, which covers the court in-depth, noted: ‘The document leaked to Politico is almost certainly an authentic draft opinion by J. Alito that reflects what he believes at least 5 members of the Court have voted to support — overruling Roe. But as Alito’s draft, it does not reflect the comments or reactions of other Justices.’
‘It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin,’ SCOTUSblog tweeted.
Other observers called it a crisis for Roberts’ tenure as chief justice.
‘The article represents the greatest crisis that Chief Justice John Roberts has faced in his tenure on the Court,’ wrote legal scholar Jonathan Turley.
Turley also pointed out the leak happened to put pressure on the court to change its ruling before it’s publicly announced.
‘The most likely motivation is obviously to pressure the Court and push the legislation in Congress on a federal abortion law before the midterm elections. It will also likely renew the call for court packing,’ he added.
And Democratic campaign stratgist Brian Fallon tweeted: ‘Is a brave clerk taking this unpredecented step of leaking a draft opinion to warn the country what’s coming in a last-ditch Hail Mary attempt to see if the public response might cause the Court to reconsider?’
Such a ruling would immediately become an issue in the 2022 midterm election where Democrats are struggling to keep control of Congress.
Abortion would also become a major political issue in governors’ races with states being given the right to determine whether or not to allow the procedure.
Both sides of the political aisle immediately jumped on the report with Democrats outraged and Republicans praising the news.
‘Abortion care is a fundamental human right and we must legislation like it,’ wrote progressive Rep.. Ayanna Pressly of Massachusetts on Twitter.
Observers called the leak a ‘crisis’ for Chief Justice of the United States John Roberts’ tenure leading the court – above Roberts speaks with retiring Supreme Court Associate Justice Stephen Breyer in March at the State of the Union address
Protesters use coat hangers to signify that they were used for illegal abortions prior to Roe vs. Wade
Marchers hold up a sign reading ‘The people are supreme’ in front of the Supreme Court
A woman holds up a sign saying ‘we won’t go back’ at the protest
Protesters numbered in the hundreds according to reporters at the Supreme Court Monday night
‘This is bulls***,’ wrote Democratic Senator Tina Smith of Minnesota on Twitter.
‘Our daughters, sisters, mothers, and grandmothers will not be silenced. The world is about to hear their fury. California will not sit back. We are going to fight like hell,’ wrote Democratic Gov. Gavin Newsom of California.
‘The Supreme Court is preparing to overturn Roe – the most significant and glorious news of our lifetime. Join me in praying to God for the right outcome. Life begins at conception. Let’s protect it,’ tweeted conservative Rep. Marjorie Taylor Greene of Georgia.
Republican Senator Marco Rubio of Florida claimed the leak was done to influence the ruling.
A sign telling the Supreme Court one opinion on their potential ruling
‘The next time you hear the far left preaching about how they are fighting to preserve our Republic’s institutions & norms remember how they leaked a Supreme Court opinion in an attempt to intimidate the justices on abortion,’ he wrote on Twitter.
And Republican Senator Tom Cotton of Arkansas called for an investigation of the leak.
‘The Supreme Court & the DOJ must get to the bottom of this leak immediately using every investigative tool necessary,’ he tweeted.
The Democratic-controlled House of Representatives, in September, passed legislation that would codify abortion rights protections amid threats to Roe v. Wade.
That bill has been stalled in the 50-50 Senate, where it needs at least 60 votes to move forward. And it may need more than that as not all Democratic senators are guaranteed to vote for such a bill, particularly moderate Democratic Senator Joe Manchin of West Virginia.
Progressive Senator Bernie Sanders said that 60-vote thresh hold, often called the filibuster, must be removed to legalize abortion.
‘Congress must pass legislation that codifies Roe v. Wade as the law of the land in this country NOW. And if there aren’t 60 votes in the Senate to do it, and there are not, we must end the filibuster to pass it with 50 votes,’ he tweeted on Monday night.
Democrats SLAM Supreme Court’s draft decision overturning Roe v. Wade
Following the news that Justice Samuel Alito penned a draft opinion in February repudiating both Roe vs. Wade and the 1992 Planned Parenthood vs. Casey decision, prominent Democrats have vowed to fight it.
Vermont Sen. Bernie Sanders demanded Congress pass legislation that codifies abortion rights into law – and potentially end the filibuster to pass that bill, while Massachusetts Sen. Elizabeth Warren branded the Supreme Court as ‘extremist.’
Several Democratic governors, like New York Gov. Kathy Hochul, also vowed to protect abortion rights in their state, with Hochul writing: ‘I refuse to let my new granddaughter have to fight for the rights that generations have fought for and won.’
Meanwhile, New Jersey Gov. Phil Murphy dubbed it a ‘truly dark day in America,’ and California Gov. Gavin Newsom vowed to ‘fight like hell.
‘Our daughters, sisters, mothers and grandmothers will not be silenced,’ he tweeted.
Feminist attorney Gloria Allred wrote: ‘If the leaked draft opinion of the U.S. Supreme Court overturning Roe v. Wade becomes the final opinion of the U.S. Supreme Court, then countless women and girls will die or be maimed from illegal, unsafe abortions. Urge SCOTUS to support Roe v. Wade and stop endangering women.’
Prominent Democrats have taken to Twitter to condemn a draft decision overturning Roe v. Wade
Republicans, though, seemed excited by the news – but still remained wary of the decision to leak the draft decision.
Sen. Josh Hawley wrote that the leak of Alito’s decision was ‘an unprecedented breach of confidentiality, clearly meant to intimidate.
‘The Justices mustn’t give in to this attempt to corrupt the process,’ he wrote, urging them to ‘stay strong.’
Florida Sen. Marco Rubio also questioned the motives behind the leak, writing Monday night: ‘The next time you hear the far left preaching about how they are fighting to preserve our Republic’s institutions and norms, remember how they leaked a Supreme Court opinion in an attempt to intimidate.’
And controversial North Carolina Rep. Madison Cawthorn asked for prayers for the end of Roe v. Wade, writing: ‘Evil MUST not triumph.
‘Science, common sense and LIFE will win.’
Republican Sen. Marco Rubio, meanwhile, questioned why the opinion was leaked
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