The Roe v Wade Leaked Supreme Court Opinion, Explained

Last night, Politico published a draft of a Supreme Court opinion that would overturn the 1973 decision in Roe v. Wade that has guaranteed access to abortion in the United States for 49 years. This has been a long-held ambition for the conservative movement, even as the vast majority of Americans currently support legal access to abortion.

With the addition of conservative judges Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett between 2017 and 2020, the political alignment of the court has lurched to the right. That has galvanized red states, who’ve teed up countless restrictions on abortion access intended to set the court up to rule against Roe. And if the draft is any indication, Roe v. Wade will soon go from jeopardized to doomed. Here’s what to know.

What leaked, exactly?

A draft of the Supreme Court majority’s opinion, written by conservative justice Samuel Alito, on a case concerning a Mississippi law that restricts abortion access in the state. It’s not clear that this is the court’s final say on the matter, but the leak does indicate that this opinion was supported by a majority of justices—at least at one point.

The court has confirmed the draft is authentic, and Chief Justice John Roberts has ordered an investigation, calling the leak a “betrayal of the confidences of the Court.”

It’s essentially unprecedented for an opinion to leak to the press. The court prides itself on operating—at least notionally—above the partisan fray. This has long been a little rich, as the court consistently rules on controversial issues along partisan lines, but this leak is a new level of political intrigue.

Can the Supreme Court just overturn Roe v. Wade?

Yes. There is an idea that the Supreme Court should not lightly overrule established precedents. But as the system is currently set up, a decision from five Supreme Court justices is final.

Who leaked the opinion?

It is unclear, and there are plausible reasons that someone on either side of the issue would want Alito’s draft to reach the American public.

A liberal might want to confirm to pro-choice activists that their worst fears are about to materialize, offering up an opportunity to do something about it. Conservatives are certainly reacting as if that’s the case, calling for an investigation to snuff out the leak’s source.

But there are also possible motives for a conservative leaker. Making the draft public now could pressure wavering conservative justices into line. According to Politico, four conservative justices voted with Alito during a private conference after hearing the case’s arguments in December. Conspicuously, Justice Roberts, the chief justice, who is more inclined to pursue at least the appearance of impartiality, was not among them.

What might this mean legally right now?

At the moment, nothing. The leaked document was just a draft of Alito’s majority opinion. It could be further modified, and none of its contents are currently binding.

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