On Monday evening, Politico published a purported draft copy of the court’s ruling, which suggested that the landmark abortion law Roe v. Wade would be overturned. The Supreme Court confirmed the document’s authenticity but said the draft does not represent a final decision by the court “or the final position of any member” in the case.
Roberts also said he directed the Marshal of the Supreme Court to carry out an investigation into the leak and the individual who leaked it to the press. Should the leaker be identified, it’s not clear what punitive actions will be taken against them, although Roberts said the leak could be considered a significant breach of trust.
“We at the court are blessed to have a workforce—permanent employees and law clerks who are intensely loyal to the institution and dedicated to the rule of law,” the George W. Bush-appointed chief justice added. “Court employees have an exemplary and important tradition of respecting the confidentiality of the judicial process and upholding the trust of the Court.”
According to the draft opinion, authored by Justice Samuel Alito, “We hold that Roe and Casey must be overruled,” referring also to the 1992 ruling Planned Parenthood v. Casey. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
Later this year, the court is slated to issue a ruling in connection to a Mississippi law that bans most abortions after 15 weeks of pregnancy. Mississippi’s attorney general’s office had urged the justices to use the case to overturn Roe v. Wade, which argued that a woman has a constitutional right to obtain an abortion.
“We emphasize that our decision concerns the constitutional right to abortion and no other right,” Alito, a George W. Bush appointee, also wrote, according to the draft published by Politico. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
Alito’s opinion, which Politico claimed was shared with the other justices in February, was labeled as a first draft. There was no suggestion that other members of the Supreme Court who may have voted to overturn Roe v. Wade agreed with Alito’s arguments. There is also a history of Supreme Court members having sought revisions to their draft opinions or have even reversed their initial votes.
On Tuesday, Democrats did not address the apparent breach of the Supreme Court’s protocols and instead focused on mobilizing their supporters into voting for politicians to pass pro-abortion bills. Republicans, meanwhile, called for an investigation into the leak and said the leaker should face punishment or even prosecution.
“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,” President Joe Biden said in a statement. “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.”
In response, Sen. Mitt Romney (R-Utah) said in a statement that while he supports the opinion, leaking the draft is an “appalling affront against a critical institution and should be fully investigated and those responsible should be punished.”