The Supreme Court is likely to overturn Roe v. Wade, according to a draft majority opinion by Justice Samuel Alito published by Politico. While the draft, dated to February, is not final, it is tentatively supported by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. The opinion states that “Roe was egregiously wrong from the start,” a full-throated rejection of the nearly 5 decades old precedent, making a hypothetically possible reversal seemingly likely, though the decision is unlikely to be finalized until June or July. The leak is unprecedented in recent times for the Supreme Court, known for its private deliberation, internal collegiality and detachment from day-to-day politicking. In response to the draft opinion, Governor Newsom has vowed to increase funding for abortion access and pass an amendment to the state constitution guaranteeing the right to an abortion.
Draft opinions are only circulated among justices and their staff, and speculation is that a clerk of one of the left leaning judges leaked the proceedings in the hope of creating political pressure to change the final outcome of the vote, a gross violation of historic judicial norms. According to SCOTUSblog, a popular and authoritative legal blog specializing in Supreme Court coverage, “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.” Politico has not identified the source of the leak, but Chief Justice John Roberts has verified its authenticity in a public statement, and indicated that the Marshal of the Supreme Court is conducting an internal investigation to uncover the source of the leak.
“To the extent that this betrayal of the confidences of the court was intended to undermine the integrity of our operations, it will not succeed. The work of the Court will not be affected in any way,” said Roberts.
Within hours of the leak a crowd had gathered in front of the Supreme Court to protest the expected decision, consisting of supporters and opponents of the repeal, with heated exchanges between the two groups. Pro-choice activists chanted “Hey hey, ho ho, sexist fascists have got to go,” while a pro-lifer in another exchange with a protester retorted “Cope and seethe, ma’am! COPE AND SEETHE! You lost, baby killer!”
In a joint statement by Majority Leader Chuck Schumer and Speaker of the House Nancy Pelosi, Congressional Democrats condemned the tentative decision in the strongest possible terms, calling it an “abomination”. Deriding Trump nominees such as Gorsuch, Kavanaugh and Barrett for alleged deception of Congress when they referred to Roe as “settled law” during their nominations, they stated “Several of these conservative justices, who are in no way accountable to the American people, have lied to the United States Senate, ripped up the Constitution and defiled both precedent and the Supreme Court’s reputation.”
President Biden also referred to the draft as “radical.” Between calls by left wing activists and members of Congress such as Alexandria Ocasio Cortez to impeach Justice Thomas for his wife’s involvement in the Jan. 6th protest, an increasingly vocal segment of the Democratic Party calls for packing the Supreme Court with more left wing justices, and the derogatory use of“Trump judge“ to discredit jurists appointed by the former president, the future of the Supreme Court is certain to be a core issue in the upcoming 2022 midterm elections.
The expected overturning of Roe v. Wade would remove federal protection for abortion and send the question back to the states; California law is highly unlikely to change as abortion rights are enshrined in the state constitution, with Governor Gavin Newsom promising to “fight like hell” to keep it that way and make California a “sanctuary” for out-of-state abortions by increasing funding for abortion subsidies and passing a constitutional amendment to guarantee abortion rights. Recent proposed legislation such as AB-2223, which has already made it through committee, would further protect abortion by preventing criminal or civil prosecution for fetal deaths, possibly even immediately after birth, and penalizing any official or individual who violates abortion rights; a number of such laws were proposed in California earlier in 2022 in pre-emption of a possible overturn of Roe v. Wade
Michael Whittaker is a commentator and analyst for The California Review focused on national and California affairs. Whittaker was previously a contributor at both the Stanford Review and the Stanford Daily.