WASHINGTON — The Supreme Court privately voted to strike down the landmark Roe v. Wade case that has guaranteed the right to abortion for nearly a half-century, according to a leaked draft opinion from February published online Monday night by Politico.
In the draft opinion, written by Justice Samuel Alito, a majority of the court voted to overturn Roe, according to Politico. Alito called it wrongly decided and said the contentious issue, which has animated political debates in the United States for more than a generation, should be decided by politicians, not the courts.
“We hold that Roe and Casey must be overruled,” Alito writes in the document, labeled the “Opinion of the Court,” according to Politico. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
The release of the 98-page document is in modern times. In the court’s modern history, early drafts of opinions have never leaked before the final decision is announced. And early drafts of opinions often change by the time the decision from the court is announced.
But if the justices announce a decision along the lines of the early, leaked draft, it would be a change in American law and politics, coming just months before congressional midterm elections that will decide who controls power on Capitol Hill.
In light of the Politico report, Gov. Asa Hutchinson wrote on Twitter, “I have advocated for the reversal of Roe v. Wade all my political career. The leak from someone within the court is reprehensible and should lead to an investigation but I do hope the returns authority to the states. “
The Politico report said the justices voting to support Alito’s opinion were Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
The news organization said Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan were working on dissents. It was not clear how Chief Justice John Roberts planned to vote.
US BAN STRATEGIZED
Leading anti-abortion groups and their allies in Congress have been meeting behind the scenes to plan a national strategy that would kick in if the Supreme Court has indeed rolled back abortion rights, including a push for a strict nationwide ban on the procedure if Republicans retake power in Washington.
The effort, say, is designed to bring a fight that has been playing out largely in the courts and state legislatures to the national political stage.
The discussions reflect what described as an emerging consensus in some corners of the anti-abortion movement to push for hard-line measures that will end a practice they see as murder while rejecting any proposals seen as half-measures.
Some local and Republican lawmakers now say those laws are not ambitious enough for the next phase of the anti-abortion movement. Instead, they now see the six-week limit — which they call “heartbeat” legislation — as the preferred strategy because it would prevent far more abortions.
“This is a whole new ballgame,” Kristan Hawkins, president of Students for Life Action, one of the country’s biggest anti-abortion groups, said in an interview.
One top, advocate Marjorie Dannenfelser, president of the anti-abortion group Susan B. Anthony List, has spoken privately with 10 possible Republican presidential contenders, including former President Donald Trump, to talk through national anti-abortion strategy. Most of them, she said in an interview, assured her that they would be supportive of a national ban and would be eager to make that policy a centerpiece of a presidential campaign.
Students for Life Action, along with nine other prominent anti-abortion groups, plans to send a letter to every Republican member of Congress on Monday pushing them to embrace a “heartbeat bill.”
A nationwide abortion ban would be difficult to pass, particularly given the need for 60 votes in the Senate to overcome a filibuster under current. Such a measure would encounter resistance from nearly all Democrats in addition to a handful of Republicans, who might raise questions about its constitutionality.
The Senate is split 50-50, but with a handful of competitive races this year, neither party is expected to attain a filibuster-proof majority.
The possibility of a nationwide ban is “terrifying,” said Kelley Robinson, executive director of Planned Parenthood Action Fund, adding that the proposal would be a major motivator for Democrats in the midterm elections.
“By them saying out loud that their goal is to push a nationwide abortion ban, it makes it clear that we have to elect more pro-reproductive health champions on the national level and in the states,” she said.
CHANGING TIMES
The discussions in Washington show how the political landscape around abortion has shifted in just a few years.
Washington Post-ABC News polls show that about 6 in 10 Americans oppose overturning Roe, a number that has hardly changed in the past two decades. But Trump reshaped the Supreme Court during his time in office, appointing three justices to create a 6-to-3 conservative majority.
That court has passed up three opportunities to overturn the Texas law, a clear violation of long-standing precedent.
Republican lawmakers in state houses across the country have been racing to restrict the procedure ahead of the Supreme Court decision. Meanwhile, Democratic legislators have been laying the groundwork to turn their states into abortion “sanctuaries,” building clinics close to red-state borders and passing laws that enshrine abortion rights.
Activists see legislation as a new way to energize core conservative federal voters over the next two national election cycles.
Some even say the thinking has shifted in the past few months, largely because of the success of the Texas law, with growing support in the movement for the six-week ban. Approximately 93% of abortions take place in the first 13 weeks of pregnancy, according to the Centers for Disease Control and Prevention — meaning 15-week bans target a small fraction of abortions.
Now that people across the country have grown comfortable with that law, Dannenfelser said it can become “consensus legislation.”
Robinson disagrees with that assessment, arguing that the Texas law has motivated people across the country to understand the high stakes of the abortion debate. She cited the crowds that have gathered recently to protest anti-abortion bills in Kentucky, Nebraska and Florida.
People are awakening to [the anti-abortion] strategy, and I think we will see this reaction continue to grow and peak after the Supreme Court decision,” Robinson said.
Speaking to a group of students and advocates at the University of Virginia in late April, Hawkins also emphasized the importance of the Texas law in changing public opinion on restrictive abortion bans. On a recent trip to Texas, she told the crowd, she saw women on cellphones and in business suits.
“Nearly 65% of all abortions have been illegal in Texas since September 1st and somehow women are still free to be women. It’s like shocking, I know,” she said.
Studies show that a majority of Texas women seeking abortions after six weeks have been able to access abortion pills illegally online or travel to abortion clinics out of the state, an option that would not be possible under a national ban.
In recent months, Dannenfelser said she has spoken to at least 20 governors about their post-decision plans, helping them understand which laws could take effect in their state and what they would need to do to activate the legislation.
For example, the 13 “trigger bans” across the country, which ban abortion outright as soon as Roe is overturned, all work a little differently, she said. Other states have various anti-abortion laws that have been blocked by the courts and could come back to life.
“We need to make sure there is perfect clarity on the status of laws in their state,” Dannenfelser said.
After the states have taken the lead, she said, momentum will start to build in Washington.
NATIONAL EFFORTS
Republicans will probably mobilize around certain bills that have already been introduced, including restrictions on minors traveling across state lines for abortions, said Rep. Mike Johnson, R-La., who has proposed such a bill.
Several abortion bans have already been introduced in Congress. A six-week abortion ban has been introduced in the House, by Rep. Mike Kelly, R-Pa.
A group of Republican senators has discussed at multiple meetings the possibility of banning abortion at around six weeks, said Sen. James Lankford of Oklahoma, who was in attendance and said he would support the legislation.
Sen. Joni Ernst, R-Iowa, will the legislation in the Senate, according to an anti-abortion advocate with knowledge of the discussions who spoke on the condition of anonymity to discuss internal strategy. Ernst did not respond to a request for comment.
The Life at Conception Act, which would recognize a fetus as a person with equal protections under the 14th Amendment of the US Constitution, has been introduced in both chambers. Nineteen Republican senators and well over 100 Republicans in the House have co-sponsored the measure.
While none of those proposals have gone anywhere in the past, say the Supreme Court decision could give them more prominence in the public debate.
Lankford said he would like to see a national “cap” for abortions, establishing a limit on when abortions can be performed, in addition to various bans on the state level.
On the federal level, he said, there will be “a dialogue to try to figure out, what is the right moment?”
If the high court rules with the anti-abortion movement, Republican lawmakers would be presented with various types of abortion bans, Dannenfelser said.
The two leading proposals, she added, would probably be a 15-week ban and a six-week ban. But some movement and lawmakers say the momentum has clearly shifted toward tight restrictions.
Kelly said he doesn’t understand why anti-abortion Republicans would settle for a 15-week ban if Roe is overturned.
“I’m not willing to compromise that,” he said.
In her letter to Republican members of Congress, Hawkins describes Mississippi’s 15-week ban as a tool that “served [its] purpose in leading us to where we are today.”
“But at this pivotal moment in which almost anything is possible, it’s crucial to establish the difference between a previous tactic (such as limiting abortion at 15 weeks) and our goals or current strategies,” the letter says.
Susan B. Anthony List has been working to gather co-sponsors for both pieces of legislation.
The midterms will be a test to see how respond to each type of ban, she said.
Her organization is tracking nine battleground states and many more House districts, she said, where candidates will voice support for varying degrees of abortion restrictions. After the midterms, she said, she and her staff will assess which messaging proved most successful.
At least one possible Republican presidential candidate, former New Jersey Gov. Chris Christie, said he opposes any kind of national ban on abortion.
“The states should be making those decisions and the federal government should stay out of it,” he said.
Information for this article was contributed by Michael D. Shear of The New York Times and by Caroline Kitchener and Scott Clement of The Washington Post.
Sen. James Lankford, R-Okla., and his wife, Cindy, lead a prayer at the Conservative Political Action Conference in February in Orlando, Fla. MUST CREDIT: Washington Post phto by Jabin Botsford
Marjorie Dannenfelser, president of Susan B. Anthony List, in her Arlington, Va., office in April. MUST CREDIT: Photo for The Washington Post by Astrid Riecken
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