Supreme Court says draft opinion on abortion authentic, opens investigation into leak

"This was a singular and egregious breach of trust that is an affront to the court," Chief Justice John Roberts said of the leak on Tuesday.

Activists rally outside the U.S. Supreme Court in Washington, D.C., on Tuesday after the leak of a draft majority opinion preparing for the court to overturn the landmark abortion decision in Roe v. Wade. Photo by Bonnie Cash/UPI
1 of 4 | Activists rally outside the U.S. Supreme Court in Washington, D.C., on Tuesday after the leak of a draft majority opinion preparing for the court to overturn the landmark abortion decision in Roe v. Wade. Photo by Bonnie Cash/UPI | License Photo

May 3 (UPI) -- The U.S. Supreme Court on Tuesday confirmed that a draft opinion to overturn the landmark abortion ruling in Roe vs. Wade that was leaked late Monday is authentic, but cautioned that the draft is not necessarily the final word on the matter.

In the opinion, drafted in February and reported by Politico on Monday night, Justice Samuel Alito was joined by four Republican-appointed justices in the decision to overturn Roe vs. Wade's holding of a federal constitutional right to abortion and Planned Parenthood vs. Casey, which largely maintained that right.


"We hold that Roe and Casey must be overruled," Alito writes in the document. "It is time to heed the Constitution and return the issue of abortion to the people's elected representatives."

The other four justices to join Alito were Clarence Thomas, who was appointed by former President George H.W. Bush, and Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, all of whom were nominated by former President Donald Trump.


In a statement on Tuesday, the Supreme Court acknowledged that the draft is legitimate.

"Justices circulate draft opinions internally as a routine and essential part of the court's confidential and deliberative work," the statement said. "Although the document described in yesterday's reports is authentic, it does not represent a decision by the court or the final position of any member on the issues in the case."

Chief Justice John Roberts said in the statement that the court is concerned about the leak.

"To the extent this betrayal of the confidences of the court was intended to undermine the integrity of our operations, it will not succeed," he said. "The work of the court will not be affected in any way.

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

"I have directed the Marshal of the Court to launch an investigation into the source of the leak," he added.

The leaked draft set off a wave of concern nationwide among abortion rights supporters and advocates. President Joe Biden said Tuesday that "basic fairness" in law demands that Roe vs. Wade not be overturned.


Protesters gathered outside the Supreme Court on Monday night and the Women's March vowed to take to the streets Tuesday against the draft opinion.

Demonstrators gathered outside the court chanting "abortion is healthcare" and carrying signs in opposition of the leaked opinion with Democratic leaders vowing to protect and expand access to the medical procedure in their states.

Politico said that it obtained a copy of the draft opinion from a person familiar with the court's proceedings in Dobbs vs. Jackson, a challenge to Mississippi's 15-week abortion ban.

It was not immediately clear whether changes had been made to the draft since it circulated in February, as Politico also noted it was not final and that opinions can often undergo multiple drafts and vote changes before a decision is revealed.

The opinion in the case is not expected to be published until late June before the high court's term ends.

Dafna Linzer, Politico's executive editor, wrote in an editor's note that "after an extensive review process, we are confident of the authenticity of the draft" as Politico noted that "no draft decision in the modern history of the court has been disclosed publicly while a case was still pending."


"This unprecedented view into the justices' deliberations is plainly news of great public interest," she wrote.

SCOTUSblog, an independent blog written by lawyers, law professors and students about the high court, condemned the leak.

"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," the site's Twitter account wrote. "This leak is the gravest, most unforgivable sin."

Planned Parenthood President and CEO Alexis McGill Johnson called the leaked decision in a statement Monday "horrifying and unprecedented," adding that it "confirms our worst fears" that the Supreme Court would end the constitutional right to abortion.

McGill Johnson added that Planned Parenthood had been preparing for a potential move by the high court to overturn Roe vs. Wade and is "built for the fight" but asserted that abortion remains legal in the meantime.

"Planned Parenthood health centers remain open, abortion is currently still legal and we will continue to fight like hell to protect the right to access safe, legal abortion," she said.

Senate Democratic leader Chuck Schumer of New York with House Speaker Nancy Pelosi, D-Calif., issued a scathing statement late Monday, saying that if the report is accurate, then the Supreme Court is poised to inflict the greatest restriction on rights seen in the past 50 years.


"The Republican-appointed justices' reported votes to overturn Roe vs. Wade would go down as an abomination, one of the worst and most damaging decisions in modern history," they said.

In response the draft opinion, the Women's March has called for supporters nationwide to congregate at their local courthouse, federal buildings and town squares at 5 p.m. Tuesday in demand that officials prevent the justices from repealing abortion rights.

"We'll show up on Tuesday -- and keep showing up in larger and larger actions in the days, weeks and months to come," it said.

Several Democratic state governors were also quick to respond to the report, stating they would continue to defend women's right to access the medical procedure.

In New York, Gov. Kathy Hochul called the draft opinion on Twitter "an absolutely disgraceful attack on our right to choose," and in a statement said "this should not be the Supreme Court's final opinion when it comes to abortion rights."

New York City Mayor Eric Adams also issued a statement in support of abortion rights, stating, "We're ready to fight like hell."

In California, Gov. Gavin Newsom announced an amendment to enshrine the right to access abortion in the state's constitution.


"We know we can't trust the Supreme Court to protect reproductive rights, so California will build a firewall around this right in our state constitution," Newsom said in a joint statement with state Senate President pro Tempore Toni Atkins and Assembly Speaker Anthony Rendon. "Women will remain protected here."

New Mexico Gov. Michelle Lujan Grisham, Michigan Gov. Gretchen Whitmer, North Carolina Gov. Roy Cooper and New Jersey Gov. Phil Murphy were among the other Democratic governors to voice rebukes against the draft opinion.

"I want to assure every New Jerseyan that today's news about the Supreme Court does not change access to abortion in the state," Murphy tweeted. "Access to reproductive healthcare remains available to anyone who needs it in New Jersey."

Others saw it as a call to action, with Pennsylvania's Lt. Gov. John Fetterman stating Democrats need to pass legislation to end the filibuster and to codify Roe vs. Wade into law.

"We cannot afford to wait," he said.

The Democratic Senatorial Campaign Committee issued a similar statement, calling on Democrats to expand their majority in the Senate so they have the power to confirm or reject Supreme Court justices.

"Congress must pass legislation that codifies Roe vs. Wade as the law of the land in this country NOW," Sen. Bernie Sanders, I-Vt., wrote on Twitter. "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."


Meanwhile, Republican Gov. Kay Ivey of Alabama called on those who leaked the draft opinion to be "held responsible" for what she called an "outrageous and a blatant attempt to manipulate the court."

"My prayer is that Roe vs. Wade is overturned and that life prevails," she tweeted. "Here in Alabama, we will continue fighting for the unborn."

South Dakota Gov. Kristi Noem also said if the report is correct, she would immediately call for a special session after Roe vs. Wade is overturned "to save lives and guarantee that every unborn child has a right to life in South Dakota."

Lila Rose, founder and president of anti-abortion group Live Action, in a statement to UPI called for even further action to ensure that "every human being's right to life is legally protected from the moment of fertilization."

"Roe has been wrongly decided since the day it was issued. It's illogical and gravely unjust," Rose said. "A decision overruling Roe would be an important step in the right direction of acknowledging and protecting our fundamental right to life, but if this decision is issued, true justice has not yet been achieved."

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