Politico scooped the first draft of the court’s majority opinion written by Justice Samuel Alito and supported by four other conservative justices — Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — in ‘Thomas E Dobbs, State Health Officer of the Mississippi Department of Health vs. Jackson Women’s Health Organisation’, popularly known as the “Mississippi case”.

Three Democratic-appointed justices — Stephen Breyer, Sonia Sotomayor, and Elena Kagan — were working on one or more dissents, Politico reported, quoting an unnamed source.

It was unclear which way the opinion of the ninth justice, Chief Justice John Roberts, would go, but a possible dissent by him would still leave the conservative block of the court with a 5-4 majority.

What is Roe v. Wade?

The case is sometimes referred to simply as “Roe”, the listed name of the 22-year-old plaintiff, Norma McCorvey. ‘Wade’ was the defendant Henry Wade, the Dallas County (Texas) district attorney at the time.

Roe struck down laws that made abortion illegal in several states, and ruled that abortion would be allowed up to the point of foetal viability, that is, the time after which a foetus can survive outside the womb.

Foetal viability was around 28 weeks (7 months) at the time of the Roe judgment. Experts now agree that advances in medicine have brought the threshold down to 23 or 24 weeks (6 months or a little less).

In the draft opinion obtained by Politico, Alito has rejected Roe as “egregiously wrong from the start”, and held that both Roe and ‘Casey’ — another landmark abortion judgment of the court from 1992 that reaffirmed the central tenet of Roe, that women have the right to terminate pregnancies up to the point of foetal viability — “must be overruled”.

According to the majority opinion quoted by Politico, “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives”.

Roe’s “survey of history ranged from the constitutionally irrelevant to the plainly incorrect,” its reasoning was “exceptionally weak,” and the decision has had “damaging consequences”, the draft ruling says, according to Politico.

“The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions,” Alito has written.

What is the Mississippi law?

In 2018, the Republican-majority legislature of the state of Mississippi banned most abortions after 15 weeks — much before foetal viability, and sooner than was allowed by Roe — throwing a direct challenge to the 1973 judgment.

The then last remaining abortion clinic in the state, Jackson Women’s Health Organisation, which provided abortion services up to 16 weeks of pregnancy, challenged the law, and in November that year, US District Judge Carlton Reeves struck it down, ruling that it “unequivocally” violated the constitutional rights of women.

On March 19, 2019, then Republican Governor Phil Bryant signed the so-called “heartbeat” abortion law, an even more restrictive measure that banned most abortions once foetal cardiac activity could be detected — which is about six weeks. Bryant challenged the opponents of the law to sue: “If they do not believe in the sanctity of life, these that are in organisations like Planned Parenthood, we will have to fight that fight. But it is worth it,” The Associated Press reported at the time.

The heartbeat law said that physicians who performed an abortion after a foetal heartbeat was detected could have their medical licences revoked. The law made no exceptions for pregnancies caused by rape or incest.

This law too was blocked by a district judge, and in February 2020, the 5th Circuit Court of Appeals in New Orleans agreed with the decision. In December 2019, the Circuit had also kept in place the block on the other — 2018 — law.

When the 2018 law — which banned abortion if “the probable gestational age of the unborn human” was determined to be more than 15 weeks, except in cases of medical emergencies or “a severe fetal abnormality” — reached the Supreme Court, there were indications in the hearings in December 2021 that the bench was likely to uphold it.

A decision in the matter was expected in June or July 2022. The 98-page leaked first draft of the court’s decision is not final yet. The draft includes a notation that it was circulated among the justices on February 10, the Politico report said.

A crowd of people gather outside the Supreme Court, Monday night, May 2, 2022 in Washington. (AP Photo/Alex Brandon)

Why is the decision of the Supreme Court important?

The issue of abortion has sharply split opinion among conservatives and liberals in the US for decades.

Until a few years ago, a challenge to Roe v. Wade would have been unlikely to succeed, but the changes in the character of the Supreme Court following the appointments of conservative Justices Gorsuch, Kavanaugh, and Barrett during the Donald Trump presidency have given rise to a fresh spurt of litigation around the issue.

The clear conservative majority in the Supreme Court has given the conservatives their best chance for decades to overturn Roe.

Should the court confirm Justice Alito’s first draft opinion and overturn Roe, more than half of US states would “likely or almost certainly” ban abortions, The New York Times said, quoting an analysis from the Guttmacher Institute that was updated in April.

Depending on how the court words its final judgment, legal abortion access could “effectively end for those living in much of the American South and Midwest, especially those who are poor”, The NYT report said.

Liberal commentators have predicted “seismic” changes in American society if Roe were to be overturned. It will undoubtedly be a significant decision with ripples around the world as a victory for conservative right wing opinion.

The issue of abortion has sharply split opinion among conservatives and liberals in the US for decades. (AP Photo/Alex Brandon)

Is a leak from the Supreme Court such as this unusual?

“No draft decision in the modern history of the court has been disclosed publicly while a case was still pending,” the Politico report said.

Speculation on the source of the leak went from it being a clerk for a liberal justice seeking to bring public pressure on the court before it made a final decision, to conservatives orchestrating it so as to “soften the blow” early.

Jonathan Peters, a professor of media law at the University of Georgia, posted a thread on Twitter saying leaks such this one were not that unusual after all.

Its recorded history of leaks dates back to mid-19th century. Some leaks have commented on a decision after its release. Others have provided accounts of personal relationships/conflicts among the justices. And, yes, some opinions have leaked before release.

— Jonathan Peters (@jonathanwpeters) May 3, 2022

The court’s “recorded history of leaks dates back to mid-19th century. Some leaks have commented on a decision after its release. Others have provided accounts of personal relationships/conflicts among the justices. And, yes, some opinions have leaked before release,” Prof Peters tweeted.

He included in the list the 1852 case ‘Pennsylvania v. Wheeling and Belmont Bridge Company’, the outcome of which was reported by the New York Tribune “ten days before the Court handed down its decision”; leaks about Roe v. Wade in the 1970s; and, most recently, CBS’s Jan Crawford’s report in 2012 that “Chief Justice Roberts voted to strike down the heart of the Affordable Care Act before changing his mind and siding with the court’s liberal bloc”.

All of which is to say: Supreme Court leaks are rare and remarkable, but they are not unprecedented. I’ve done some research on this, and I’m just sharing for anyone who might be interested in this wider context. /end

— Jonathan Peters (@jonathanwpeters) May 3, 2022

In conclusion, Prof Peters said, “Supreme Court leaks are rare and remarkable, but they are not unprecedented. I’ve done some research on this, and I’m just sharing for anyone who might be interested in this wider context.”

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