The US Supreme Court is planning to overturn its ruling in Roe v Wade, the 1973 decision that legalised abortion throughout the United States, according to a leaked draft judgment published by the news website Politico.
If the court follows this draft in a ruling expected by July, state legislatures would be free to ban abortion. Twenty-two of the 50 US states are planning to do so.
The draft concludes (on page 67):
Abortion presents a profound moral question. The constitution does not prohibit the citizens of each state from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.
Planned Parenthood v Casey, decided in 1992, largely upheld Roe v Wade.
The draft majority ruling is published in full by Politico and can freely dowloaded. It is a printed document of 98 pages — including a 31-page appendix summarising the law in 1868 — which has been unstapled before being scanned.
It looks entirely authentic:
As we can see, this is a first draft that was circulated by Justice Alito to the other justices nearly three months ago. Though it is written as the court’s ruling, it does not indicate which justices support it.
However, Politico reports:
A person familiar with the court’s deliberations said that four of the other Republican-appointed justices — Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — had voted with Alito in the conference held among the justices after hearing oral arguments in December, and that line-up remains unchanged as of this week.
The three Democratic-appointed justices — Stephen Breyer, Sonia Sotomayor and Elena Kagan — are working on one or more dissents, according to the person. How Chief Justice John Roberts will ultimately vote, and whether he will join an already written opinion or draft his own, is unclear…
Under longstanding court procedures, justices hold preliminary votes on cases shortly after argument and assign a member of the majority to write a draft of the court’s opinion. The draft is often amended in consultation with other justices, and in some cases the justices change their votes altogether.
If Alito still has the support of four other justices, his view will represent a majority of the nine-judge court regardless of how Roberts votes.
Whoever leaked the draft may have hoped that the reaction would persuade one of the Republican-appointed justices to join those currently in the minority. This seems unlikely. But at least we know what to expect.
Here is an extract from Alito’s judgment:
Comment
This leak from the US Supreme Court is unprecedented in its detail — the result of Roe v Wade was leaked to Time magazine but not the content — and it is hugely damaging to the court’s reputation:
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. This leak is the gravest, most unforgivable sin.
There have been occasional leaks from the UK Supreme Court (and lower courts) because judgments are usually circulated in advance to counsel in the case for the convenience of all concerned. The US Supreme Court does not release its rulings in advance to anyone. It does not even announce when they are to be delivered.
It is important for readers in the United Kingdom to understand the differences between the US Supreme Court and its counterpart in the UK. The US court can declare legislation unconstitutional and thereby overturn it. Decisions of the US Supreme Court cannot be reversed by the legislature without a constitutional amendment — which is very difficult to secure.
As Lord Reed said in 2019, shortly before he became president of the UK Supreme Court, the US court can bring about major and controversial changes to American life:
For example, it was not congress that guaranteed abortion rights to all American women, or that allowed same-sex couples in every state to marry, but the Supreme Court. In Britain, on the other hand, it was parliament that liberalised abortion law in 1967, and the UK and Scottish parliaments which passed laws permitting same-sex marriages. The UK Supreme Court does not have the power to change the law in that way, and the justices would not want to have that power.
The other fundamental difference between the two supreme courts is politics. Though some UK justices tend to be more conservative than others, they are not appointed because of their political views. Unlike in the US, there is no question of UK justices voting on party lines.
It is also worth noting that some women in the UK who are seeking abortions may still have to travel to a different legal jurisdiction. The Westminster parliament legalised abortion in Northern Ireland in 2019. But there have been delays in commissioning the medical services required there by law.