A draft Supreme Court opinion suggesting the conservative majority may be about to outlaw the constitutional right to an abortion hit like a political lightning bolt Monday night.
The draft opinion, obtained and authenticated by Politico, heralds what would be a massive victory for the conservative movement decades in the making. It set off immediate condemnation and calls for action from leading liberal and medical groups and Democratic leaders, as well as protests outside the Supreme Court building.
The bombshell concerns a draft majority opinion, written by conservative Justice Samuel Alito, that slammed the landmark 1973 Roe v. Wade decision enshrining the right to an abortion as wrongly decided. It was circulated in early February, according to Politico, but the final opinion isn't expected to be published until late June. Votes and language can change before opinions are formally released.
CNN has not independently confirmed the document's authenticity. A Supreme Court spokesperson declined to comment to CNN.
But if the high court follows through on such a decision in the coming weeks, it would engineer a massive shift in American life and law -- and provide a startling sign of just how fundamentally the conservative majority, solidified by former President Donald Trump, will change society in the decades to come. It would potentially cast into doubt all kinds of precedents and past court rulings that have been regarded as settled law for years.
A staggering change in American life
If the final decision is issued along the lines of Alito's draft, millions of American women could have a fundamental right, which many have known all of their lives, taken away. But millions of people who believe that life begins at conception would celebrate such a ruling.
There will be weeks of debate about the legal reasoning and implications behind Alito's draft
That would mean that the five conservative justices that would make up the majority overturning Roe are Alito and Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
Roberts is willing, however, to uphold the Mississippi law that would ban abortion at 15 weeks of pregnancy, CNN has learned. Under current law, government cannot interfere with a women's choice to terminate a pregnancy before about 23 weeks, when a fetus could live outside the womb.
Roberts did not respond to questions from CNN as he left his house Tuesday morning.
A largely somber crowd gathered outside the Supreme Court building Monday evening, as people came together to console one another and question what to do next.
At one point, the crowd began to chant, "Hey, hey, ho, ho, Samuel Alito's gotta go." "We will not go back." "Abortion rights are under attack, what do we do, stand up fight back." "Pack the courts."
Politico's publishing of the draft is unprecedented by the high court's standards of secrecy. The inner deliberations among the justices while opinions are being drafted and votes are being settled are among the most closely held details in Washington.
"This news is simply stunning for the Supreme Court as an institution," said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law. "Not only is the result it portends -- the overruling of Roe and Casey -- a shockwave to our constitutional politics, but we have never seen a leak remotely like this from inside the Court, where we're not just hearing what the result is going to be, but we're seeing the draft majority opinion in advance. It's hard to believe that the former doesn't help to explain the latter, but it's an earthquake in both respects."
The case in question is Dobbs v. Jackson. It concerns a challenge to Mississippi's 15-week ban on abortion and oral arguments were heard on December 1. The release of a final opinion in the case is expected later this Spring or early summer.
In the draft opinion, Alito writes that Roe "must be overruled."
"The Constitution makes no reference to abortion and no such right is implicitly protected by any constitutional provision," Alito wrote. He said that Roe was "egregiously wrong from the start" and that its reasoning was "exceptionally weak, and the decision has had damaging consequences."
He added, "It is time to heed the Constitution and return the issue of abortion to the people's representatives."
"That is what the Constitution and the rule of law demand," he said, according to the draft.
Already nearly half of the states have or will pass laws that ban abortion, while others have enacted strict measures regulating the procedure.
Process of voting
Oral arguments in the case were held on December 1.
Under normal procedure, by the end of that week the justices would have met in their private conference to take a preliminary vote on the issue. They would have gone around the table in order of seniority discussing their take on the case. Roberts would have gone first, with Barrett last.
After that initial tally, if Roberts was in the majority he would assign the majority opinion. Otherwise the most senior justice would have taken that responsibility. After that, draft opinions would go between chambers. In the past, justices have changed their votes and sometimes a majority opinion ultimately becomes a dissent.
A reversal of Roe would leave abortion policy up to individual states and would likely produce a patchwork system where the procedure would remain largely available in Democratic-led states, while Republican-led states would pass extreme limits or outright bans on it.
But in practice, such a ruling would seem likely to send the issue back to the states. That might mean abortion would be quickly banned by state legislatures in Republican-run states but remain legal in Democratic-run states. Such a scenario would further drive a schism between two halves of the country, which has been exacerbated by increasingly polarized politics in recent years.