A draft of a majority opinion overturning the United States Supreme Court’s landmark Roe v. Wade decision from 1973 and leaked to Politico is authentic, Chief Justice John Roberts has admitted in a statement released by the Court.
Yesterday, a news organization published a copy of a draft opinion in a pending case. Justices circulate draft opinions internally as a routine and essential part of the Court’s confidential deliberative work. 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 G. Roberts, Jr., provided the following statement:
To the extent 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.
We at the Court are blessed to have a workforce – permanent employees and law clerks alike – intensely loyal to the institution and dedicated to the rule of law. Court employees have an exemplary and important tradition of respecting the confidentiality of the judicial process and upholding the trust of the Court. This was a singular and egregious breach of that 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.
The leaker’s identity and motivations are unknown. Various personalities on the right wing have nevertheless been engaged in furious speculation and finger pointing since Politico published the draft last night, declaring without so much as a shred of evidence that one of Justice Sonia Sotomayor’s clerks must be the leaker. The truth is we don’t know how the document ended up in Politico’s hands and it might not have come from a person opposed to the decision.
The right wing’s obsession with the leak itself, as opposed to the content of the draft is deliberate, Aaron Rupar says, because getting rid of Roe is an unpopular move and Republicans know it. “In short, while railing against abortion rights is a good way to rile up the Republican base, it doesn’t resonate with the general public,” Rupar wrote in this morning’s Public Notice, citing polling from Data for Progress showing voter opposition to a federal ban on abortion.
“They know they’re out of step with the majority of Americans, and so they’re retreating to safer territory — whining about their perceived victimhood.”
In some quarters, grumbling has also been heard about how this leak somehow damages the integrity of reputation of the Court. That is absurd. The Court has been destroying its own credibility for years, well before this leak happened.
The Court is not a neutral, nonpartisan, or “apolitical” institution. It is effectively an arm of the Republican Party and has been for years, as we saw in the appalling Bush v. Gore ruling back in 2000, and in many more cases since.
President Joe Biden also commented this morning on the draft opinion, before Justice John Roberts had confirmed its authenticity, saying:
We do not know whether this draft is genuine, or whether it reflects the final decision of the Court.
With that critical caveat, I want to be clear on three points about the cases before the Supreme Court.
First, my administration argued strongly before the Court in defense of Roe v. Wade. We said that Roe is based on “a long line of precedent recognizing ‘the Fourteenth Amendment’s concept of personal liberty’… against government interference with intensely personal decisions.” I believe that a woman’s right to choose is fundamental, Roe has been the law of the land for almost fifty years, and basic fairness and the stability of our law demand that it not be overturned.
Second, shortly after the enactment of Texas law SB 8 and other laws restricting women’s reproductive rights, I directed my Gender Policy Council and White House Counsel’s Office to prepare options for an Administration response to the continued attack on abortion and reproductive rights, under a variety of possible outcomes in the cases pending before the Supreme Court. We will be ready when any ruling is issued.
Third, if the Court does overturn Roe, it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose. And it will fall on voters to elect pro-choice officials this November. At the federal level, we will need more pro-choice Senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law.
Within the past hour, Vice President Kamala Harris released a statement:
The United States Supreme Court has now confirmed that the draft opinion that would overturn Roe v. Wade is genuine.
Roe ensures a woman’s right to choose to have an abortion. It also, at its root, protects the fundamental right to privacy. What is clear is that opponents of Roe want to punish women and take away their rights to make decisions about their own bodies. Republican legislators in states across the country are weaponizing the use of the law against women.
The rights of all Americans are at risk. If the right to privacy is weakened, every person could face a future in which the government can potentially interfere in the personal decisions you make about your life. This is the time to fight for women and for our country with everything we have.
The Vice President is correct.
How progressives respond to the Court’s plan to completely get rid of Roe will be of monumental importance. Although some commentators have remarked that Democrats ought to be able to pass a law codifying Roe given that they have a trifecta, the votes currently do not exist in the Senate to change the chamber’s rules to allow majority rule to prevail. If every senator who says that they support reproductive rights were to vote to create an exemption from the filibuster for a bill to codify Roe and then vote for that bill, it could reach President Biden’s desk.
The House has already acted and passed such a bill. The Senate has not.
Three female senators have the power to flip the Senate dynamic to get Roe codified: Arizona’s Kyrsten Sinema, a Democrat, Alaska’s Lisa Murkowski, a Republican, and Maine’s Susan Collins, also a Republican.
Each of them says they support reproductive freedom, but is opposed to abolishing or reforming the filibuster, which gives Mitch McConnell & Co. the power to control the outcome of Senate votes even when they’re in the minority.
With Collins and Murkowski on board, Democrats wouldn’t even need to flip the troublesome Joe Manchin (who is opposed to reproductive freedom) to go along. They’d have fifty-one votes to pass a bill codifying Roe … if those same fifty-one senators were first willing to amend the rules of the Senate.
If only Collins (or conversely, only Murkowski) went along, Chuck Schumer could still get a bill through with Vice President Harris’ tiebreaking vote. But he needs at least one Republican who supports reproductive rights, plus Sinema, to cooperate. And unfortunately, all three of these senators have proven to be very unreliable.
In the absence of such a breakthrough, the Senate would be unable to pass a bill responding to the Court’s decision until the next Congress at the soonest.
Should voters elect a bigger Senate Democratic majority this autumn, the votes might exist in 2023 to reform or end the filibuster and make progress on a host of fronts, including a response to the Court’s forthcoming decision.
Of course, any federal law protecting reproductive freedom would certainly be challenged and could end up getting struck down by this right wing Court, which is why it’s also important that Congress pass a bill to expand the size of the Court. The votes currently don’t exist for that either. Whether or not those votes will exist in the future will depend on what happens in the midterms and in 2024.
In the meantime, in a country without Roe, women are going to suffer and die. If you’d like to contribute to organizations that are on the front lines of helping ensure access to abortion care, Bridget Read has compiled a list of trusted organizations you can donate to in states where access to care is at risk.