OPINION: This article may contain commentary which reflects the author's opinion.
A majority of Supreme Court justices who signed on to a decision overturning the controversial Roe v. Wade ruling from 1973 legalizing abortion in all 50 states remain intact, according to a Sunday report.
The Washington Post, citing conservative sources within the court, reported that the four justices who agreed with Justice Samuel Alito’s opinion — Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — have thus far refused to change their minds.
The report comes nearly a week after an unprecedented leak of Alito’s opinion which some outside political observers have suggested was done to pressure those justices into reversing their opinion.
The report also noted, however, that the court’s other nominal conservative, the George W. Bush-appointed chief justice, John Roberts, continues to oppose the outright reversal of Roe and instead favors supporting the Mississippi law banning abortions after 15 weeks, which was the case under consideration.
Also, the Post said that Roberts is attempting to persuade Kavanaugh and Coney Barrett to agree with him and take the same “incremental approach.”
Fox News reports:
The leaked draft majority opinion penned by Alito is dated Feb. 10 and has almost certainly changed multiple times in the almost three months since it was written, but three conservative sources close to the court say that the votes supporting the decision remain unchanged, according to reporting from the Washington Post.
Chief Justice John Roberts, who has at times sided with the liberal wing of the court, still appears set to oppose the decision, with the report noting that Roberts was still attempting to persuade Coney Barrett and Kavanaugh to take a more incremental approach to allow abortion restrictions.
The court’s three liberals — Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan — are expected to vehemently oppose the ruling. It’s not clear if Roberts is attempting to persuade them to his incremental view.
The draft was leaked to POLITICO, which published it a week ago Monday.
“The draft opinion is a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision – Planned Parenthood v. Casey – that largely maintained the right,” the outlet reported.
In the “Opinion of the Court,” Alito wrote: “Roe was egregiously wrong from the start.”
“We, therefore, hold the Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives,” he added.
POLITICO noted further:
Deliberations on controversial cases have in the past been fluid. Justices can and sometimes do change their votes as draft opinions circulate and major decisions can be subject to multiple drafts and vote-trading, sometimes until just days before a decision is unveiled. The court’s holding will not be final until it is published, likely in the next two months,
The immediate impact of the ruling as drafted in February would be to end a half-century guarantee of federal constitutional protection of abortion rights and allow each state to decide whether to restrict or ban abortion. It’s unclear if there have been subsequent changes to the draft.
No draft decision in the modern history of the court has been disclosed publicly while a case was still pending. The unprecedented revelation is bound to intensify the debate over what was already the most controversial case on the docket this term.
The draft opinion offers an extraordinary window into the justices’ deliberations in one of the most consequential cases before the court in the last five decades. Some court-watchers predicted that the conservative majority would slice away at abortion rights without flatly overturning a 49-year-old precedent. The draft shows that the court is looking to reject Roe’s logic and legal protections.
Roberts has since confirmed that the draft opinion was genuine while also heavily criticizing the leaker. He also said that the leak won’t affect the outcome of the case.
“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 in a statement last week. “The work of the Court will not be affected in any way.”