Supreme Court verifies authenticity of draft ruling published in rare leak.
It appeared the United States Supreme Court is ready to overturn the landmark Roe v. Wade case that legalized abortion in 1973, according to a news report.
Late May 2, Politico published a 98-page first draft opinion from Justice Samuel Alito, circulated to fellow justices on Feb. 10.
The Supreme Court on May 3 confirmed the authenticity of the draft, but said “it does not represent a decision by the court or the final position of any member on the issues in the case.”
The draft ruling refers to the Roe case and the 1992 case Planned Parenthood of Southeastern Pa. v. Casey.
“We hold that Roe and Casey must be overruled,” the draft ruling said. “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely – the Due Process Clause of the Fourteenth Amendment.”
Citing case law, the draft ruling said the Due Process Clause “has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’
“The right to abortion does not fall within this category,” the draft ruling said.
The draft ruling deals with the case known as Dobbs v. Jackson Women’s Health, which the Supreme Court heard on Dec. 1, 2021.
The Supreme Court is considering the state of Mississippi’s appeal of a lower court ruling that struck down as unconstitutional the state’s law banning abortion after 15 weeks of pregnancy, according to the Center for Reproductive Rights.
“We don’t know if the document as reported by Politico is legitimate, and we don’t know if it represents the views of a majority of the Supreme Court,” CRP President and CEO Nancy Northup said in a statement issued before the Court confirmed the authenticity. “What we do know is that if the Supreme Court overturns Roe v. Wade it will be an unjustified, unprecedented stripping away of a guaranteed right that has been in place for nearly five decades. It would represent the most damaging setback to the rights of women in the history of our country.
“It’s important to remember that the Court has not yet issued a decision and abortion remains legal in the United States,” Northup said.
In 2019, a group of organizations representing primary care physicians published a joint statement opposing state efforts to restrict abortion access and in some cases criminalize physicians who perform abortion services.
A number of news outlets reported that leaks of Supreme Court draft rulings are rare. In his response, President Joe Biden said his administration staff did not know if the draft was genuine or if it reflected the final decision of the court.
The president said his administration has argued strongly before the court in defense of Roe v. Wade.
“I believe that a woman’s right to choose is fundamental, Roe has been the law of the land for almost 50 years, and basic fairness and the stability of our law demand that it not be overturned,” the president’s statement said.
Biden pledged his administration would continue fighting against state laws that restrict women’s reproductive rights. He also called on voters to elect more pro-choice senators and a pro-choice majority in the House of Representatives to adopt legislation that codifies Roe, which the president will work to pass and sign into law.
The American College of Obstetricians and Gynecologists (ACOG) leaders said they "anticipate stark changes to our framework for abortion access" in a guidance statement to its members.
ACOG President J. Martin Tucker, MD, and President-elect Iffath Abbasi Hoskins, MD, issued a joint statement about the draft decision.
"ACOG is aware of the reports of a draft opinion that would strike down the protections afforded by Roe and Casey," they said, referring to the shortened names of the earlier court cases. "We will continue to affirm that the ability of patients to access safe, legal abortion is critical for their health and well-being. We are deeply concerned by the current reports and will continue our ongoing work to prepare for a new dynamic when it comes to needed abortion care."
Medical Economics will update this story as more information becomes available.