Supreme Court draft opinion would overturn Roe v. Wade

Senate Minority Leader Mitch McConnell released a statement focused on the leak of the SCOTUS draft opinion saying, the “stunning breach was an attack on the independence of the Supreme Court” and that the action should be “investigated and punished.”

“All nine Justices should tune out the bad-faith noise and feel totally free to do their jobs, following the facts and the law where they lead," he said.

Speaking on the Senate floor shortly after releasing the statement, McConnell called the leak "shocking" and said that "judicial independence is vital."

Read McConnell's complete statement:

Sen. Susan Collins, a Republican from Maine, called out Supreme Court Justices Neil Gorsuch and Brett Kavanaugh in a statement Tuesday after Politico published what it said is a draft opinion that would overturn Roe v. Wade.

“If this leaked draft opinion is the final decision and this reporting is accurate, it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office,” Collins said.

Asked on Tuesday by CNN's Manu Raju if she was misled by Kavanaugh, Collins says: “My statement speaks for itself.”

Some more context: Collins, a supporter of abortion rights who cast a critical vote to confirm Justice Brett Kavanaugh, said in an interview with CNN in 2019 that despite his vote in a recent abortion access case, she did not believe Kavanaugh would ultimately vote to overturn Roe v. Wade.

“I have always been concerned about preserving Roe v. Wade,” Collins said, adding that Kavanaugh had given her assurances during his confirmation process that the landmark opinion was safe.

“He said under oath many times, as well as to me personally many times, that he considers Roe to be ‘precedent upon precedent’ because it had been reaffirmed in the Casey v Planned Parenthood case,” Collins added, dismissing any criticism of her as partisan politics.

Here’s a look at the US Supreme Court case Roe v. Wade.

Case: 1971 — The case is filed by Norma McCorvey, known in court documents as Jane Roe, against Henry Wade, the district attorney of Dallas County, who enforced a Texas law that prohibited abortion, except to save a woman’s life.

Decision: January 22, 1973 — The US Supreme Court, in a 7-2 decision, affirms the legality of a woman’s right to have an abortion under the 14th Amendment to the Constitution. The court held that a woman’s right to an abortion fell within the right to privacy (recognized in Griswold v. Connecticut) protected by the 14th Amendment. The decision gave a woman the right to an abortion during the entirety of the pregnancy and defined different levels of state interest for regulating abortion in the second and third trimesters. The ruling affected laws in 46 states.

Full-text opinions by the justices can be viewed here.

And read more about the legal timeline here:

RELATED

Roe v. Wade Fast Facts | CNN

A reversal of Roe v. Wade would leave abortion policy up to individual states and would likely produce a patchwork system where the procedure would remain largely available in Democratic-led states, while Republican-led states would pass extreme limits or outright bans on it.

Here's how some governors reacted to Politico publishing what it called a draft of a majority opinion written by Justice Samuel Alito that would strike down Roe v. Wade.

Republican Gov. Kristi Noem, North Dakota:

Democratic Gov. Jay Inslee, Washington:

Republican Gov. Chris Sununu, New Hampshire:

“As a pro-choice governor, I am committed to upholding Roe v. Wade, which is why I am proud of the bipartisan bill headed to my desk this year that expands access. So long as I am governor, these health care services for women will remain safe and legal.”

Democratic Gov. Tim Walz, Minnesota:

Republican Gov. Kay Ivey, Alabama:

Democratic Gov. Kathy Hochul, New York:

"I am horrified by the apparent draft Supreme Court opinion leaked this evening that would overturn the right to abortion guaranteed by Roe v. Wade. For the sake of women across the country, this should not be the Supreme Court's final opinion when it comes to abortion rights."

"We have been fighting this battle for too long. I refuse to go backwards. I refuse to let my new granddaughter have to fight for the rights generations have fought for and won, rights that she should be guaranteed."

"For anyone who needs access to care, our state will welcome you with open arms. New York will always be a place where abortion rights are protected and where abortion is safe and accessible. Just as the Statue of Liberty lifts her lamp tall in our harbor, New York will never stop fighting for what's right — unafraid and undeterred."

Republican Gov. Asa Hutchinson, Arkansas:

President Biden said a woman’s right to have an abortion is “fundamental” in a statement after Politico published what it said is a draft opinion that would overturn Roe v. Wade.

In a statement released Tuesday morning, Biden said that while “we do not know whether this draft is genuine, or whether it reflects the final decision of the Court,” he wanted to make clear his administration’s stance on the cases before the Supreme Court. 

Biden wrote his administration “argued strongly before the Court in defense of Roe v. Wade."

Here's his full statement:

Biden has a complicated history with abortion, CNN's Kevin Liptak reported earlier Tuesday, going from a moderate position as a senator to more fully embracing the Democratic Party position when he ran for president. He has yet to say the word "abortion" during his presidency, a review of his public comments found.

This draft was circulated in early February, according to Politico. The final opinion has not been released and votes and language can change before opinions are formally released. The opinion in this case is not expected to be published until late June.

CNN has not independently confirmed the document's authenticity. Politico says it has authenticated the draft. A Supreme Court spokesperson declined to comment to CNN.

Politico has obtained what it calls a draft of a majority opinion written by Justice Samuel Alito that would strike down Roe v. Wade.

The draft was circulated in early February, according to Politico.

But remember — this is a draft: The final opinion has not been released and votes and language can change before opinions are formally released. The opinion in this case is not expected to be published until late June.

Here's how the process works: Oral arguments in the case were held on December 1.

Under normal procedure, by the end of that week the justices would have met in their private conference to take a preliminary vote on the issue. They would have gone around the table in order of seniority discussing their take on the case. Chief Justice John Roberts would have gone first, with Amy Coney Barrett, the newest member of the court, last.

After that initial tally, if Roberts was in the majority, he would assign the majority opinion. Otherwise the most senior justice would have taken that responsibility. After that, draft opinions would go between chambers. In the past, justices have changed their votes and sometimes a majority opinion ultimately becomes a dissent.

Americans United for Life responded to Politico publishing what it called a draft opinion that would overturn Roe v. Wade, with the group saying it "applauds the Supreme Court’s courage in abolishing its abortion precedents."

"We encourage the Court not to waver despite the politically-motivated leaking of this draft opinion. The implicit intent of this leak is to pressure and manipulate members of the Court to alter their votes or otherwise water down the language of the final opinion—if the Court is truly the nonpolitical body that Chief Justice John Roberts has said that it is, the Court cannot now bow to partisan pressure to change course for the sake of an illusory detente," the AUL said in a statement.

The draft was circulated in early February, according to Politico. The final opinion has not been released and votes and language can change before opinions are formally released. The opinion in this case is not expected to be published until late June.

Katie Glenn, government affairs counsel at AUL, said if the draft opinion is ultimately handed down, "then it means state lawmakers have to get to work to enact strong state law and policy to protect life.”

“Americans United for Life calls on state lawmakers to meet in special session the moment the Dobbs decision is officially released to enact the strongest possible pro-life laws,” she said.

In the draft majority opinion, Justice Samuel Alito also addresses the notion that if the Supreme Court were to overturn Roe v. Wade, it could lead the court to overturn other cases like Obergefell v. Hodges that upheld the right to same sex marriage.

What “sharply distinguishes” Roe from other cases is that “abortion destroys" potential life, Alito said. 

The decision should be decided by the states, he said, and added that the Court was not able to end the debate nearly a half century ago when the Roe came down.

“This court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on,” he said.

Roe v. Wade has been on the books for almost 50 years and although the court is loath to overturn precedent, Alito says it must do so.

The notion of “stare decisis” does not “compel unending adherence to Roe’s abuse of judicial authority," he said, adding that instead of “bringing about a national settlement of the abortion issue,” Roe and a follow-on decision “have enflamed debate and deepened division. “ 

“The inescapable conclusion,” Alito wrote, according to the draft, “is that a right to an abortion is not deeply rooted in the Nation’s history and traditions."

He added, the decision was on a “collision course” with the Constitution “from the day it was decided.”

After Politico obtained what it said is a draft of a majority opinion written by Supreme Court Justice Samuel Alito that would strike down Roe v. Wade, Planned Parenthood called it "horrifying and unprecedented."

"It confirms our worst fears: that the Supreme Court is prepared to end the constitutional right to abortion by overturning Roe v. Wade. While we have seen the writing on the wall for decades, it is no less devastating, and comes just as anti-abortion rights groups unveil their ultimate plan to ban abortion nationwide," according to a statement.

Planned Parenthood CEO and President Alexis McGill Johnson also told CNN's Anderson Cooper Monday night that "we believe this is a road map for how they will take Roe down, and we have already seen it over these last nine months in Texas."

The American Civil Liberties Union also weighed in on the draft opinion, saying that "if the Supreme Court does indeed issue a majority opinion along the lines of the leaked draft authored by Justice Alito, the shift in the tectonic plates of abortion rights will be as significant as any opinion the Court has ever issued."

"It would deprive half the nation of a fundamental, constitutional right that has been enjoyed by millions of women for over 50 years. The breach in protocol at the Court pales in comparison to the breach in constitutional freedoms that the Court is charged with upholding. However the decision ultimately comes down, the ACLU will never stop fighting for a person's right to choose when and if to have a child,” ACLU Executive Director Anthony D. Romero said.

CNN's Amanda Musa contributed reporting to this post.