President Joe Biden speaks to the media about the leaked Supreme Court draft before boarding Air Force One for a trip to Alabama. Photo / Evan Vucci, AP
President Joe Biden has blasted a "radical" draft Supreme Court opinion that would throw out the landmark Roe v Wade abortion rights ruling that has stood for a half-century and warned that other rights including same-sex marriage and birth control are at risk if the court follows through.
Across the nation, Americans grappled with what might come next.
The court confirmed the authenticity of the leaked draft, which was dated February, and Chief Justice John Roberts said he had ordered an investigation into what he called an "egregious breach of trust". A court statement emphasised that the draft is not the justices' final word.
Opinions often change in ways big and small in the drafting process, and a final ruling has not been expected until the end of the court's term in late June or early July.
A decision to overrule Roe would lead to abortion bans in roughly half the states, spark new efforts in Democratic-leaning states to protect access to abortion, and potentially reshape the contours of this year's hotly contested midterm elections.
The draft was published by the news outlet Politico late Monday.
Speaking to reporters before boarding Air Force One, Biden said he hoped the draft wouldn't be finalised by justices, contending it reflects a "fundamental shift in American jurisprudence" that threatens "other basic rights" like access to birth control and marriage.
He added: "If this decision holds, it's really quite a radical decision." He said the "basic fairness and the stability of our law demand" that the court not overturn Roe.
"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," Biden said. "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."
Though past efforts have failed, Senate Majority Leader Chuck Schumer said he intended to hold a vote.
"This is as urgent and real as it gets," Schumer said on the Senate floor Tuesday. "Every American is going to see on which side every senator stands."
Whatever the outcome, the Politico report late Monday represented an extremely rare breach of the court's secretive deliberation process, and on a case of surpassing importance.
"Roe was egregiously wrong from the start," the draft opinion states. It was signed by Justice Samuel Alito, a member of the court's 6-3 conservative majority who was appointed by former President George W. Bush.
The document was labelled a "1st Draft" of the "Opinion of the Court" in a case challenging Mississippi's ban on abortion after 15 weeks, a case known as Dobbs v. Jackson Women's Health Organisation.
The draft opinion in effect states there is no constitutional right to abortion services. It would allow individual states to more heavily regulate or outright ban the procedure.
"We hold that Roe and Casey must be overruled," it states, referencing the 1992 case Planned Parenthood v. Casey that affirmed Roe's finding of a constitutional right to abortion services but allowed states to place some constraints on the practice. "It is time to heed the Constitution and return the issue of abortion to the people's elected representatives."
The draft opinion strongly suggests that when the justices met in private shortly after arguments in the case on December 1, at least five — all the conservatives except perhaps Chief Justice John Roberts — voted to overrule Roe and Casey, and Alito was assigned the task of writing the court's majority opinion.
Votes and opinions in a case aren't final until a decision is announced or, in a change wrought by the coronavirus pandemic, posted on the court's website.
Politico said only that it received "a copy of the draft opinion from a person familiar with the court's proceedings in the Mississippi case along with other details supporting the authenticity of the document".
The report comes amid a legislative push to restrict abortion in several Republican-led states — Oklahoma being the most recent — even before the court issues its decision.
Critics of those measures have said low-income and minority women will disproportionately bear the burden of the new restrictions.
The leak jumpstarted the intense political reverberations that the high court's ultimate decision was expected to have in the midterm election year. Already, politicians on both sides of the aisle were seizing on the report to fundraise and energise their supporters on both sides of the issue.
Democrats contended that several conservative justices misled senators about their feelings.
Maine Republican Susan Collins, who supports abortion rights but was a pivotal GOP vote for the confirmations of Justices Neil Gorsuch and Brett Kavanaugh, said if the draft reflects the final opinion of the court, "it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office".
Republican Sen. Lisa Murkowski of Alaska, told reporters on Capitol Hill that "my confidence in the court has been rocked" and said her proposal with Collins to legislate abortion rights should be reinvigorated.
An AP-NORC poll in December found that Democrats increasingly see protecting abortion rights as a high priority for the government.
Other polling shows relatively few Americans want to see Roe overturned. In 2020, AP VoteCast found that 69 per cent of voters in the presidential election said the Supreme Court should leave the Roe v. Wade decision as is; just 29 per cent said the court should overturn the decision. In general, AP-NORC polling finds a majority of the public favors abortion being legal in most or all cases.
Still, when asked about abortion policy generally, Americans have nuanced attitudes on the issue, and many don't think that abortion should be possible after the first trimester or that women should be able to obtain a legal abortion for any reason.
Alito, in the draft, said the court can't predict how the public might react and shouldn't try. "We cannot allow our decisions to be affected by any extraneous influences such as concern about the public's reaction to our work," Alito wrote in the draft opinion, according to Politico.
Police in Washington prepared for the potential of large demonstrations outside the Supreme Court and US Capitol. People on both sides of the issue gathered outside the court waving signs and chanting on a balmy Monday night following the release of the Politico report, and again on Tuesday.
Outside Washington, Democratic New York Gov. Kathy Hochul said people seeking abortions could head to her state. "For anyone who needs access to care, our state will welcome you with open arms. Abortion will always be safe & accessible in New York," Hochul said in a tweet.
New York will always be a place where abortion rights are protected.
— Governor Kathy Hochul (@GovKathyHochul) May 3, 2022
Just as the Statue of Liberty lifts her lamp tall in our harbor, New York will never stop fighting for what’s right — unafraid and undeterred.
Mississippi Attorney General Lynn Fitch said in a statement, "We will let the Supreme Court speak for itself and wait for the Court's official opinion." But local officials were praising the draft.
"This puts the decision-making back into the hands of the states, which is where it should have always been," said Mississippi state Rep. Becky Currie.
At Supreme Court arguments in December, all six conservative justices signalled that they would uphold the Mississippi law, and five asked questions that suggested that overruling Roe and Casey was a possibility.
Only Roberts seemed prepared to take the smaller step of upholding the 15-week ban, though that too would be a significant weakening of abortion rights.
Until now, the court has allowed states to regulate but not ban abortion before the point of viability, around 24 weeks.
Twenty-six states are certain or likely to ban abortion if Roe v. Wade is overturned, according to the pro-abortion rights think-tank the Guttmacher Institute. Of those, 22 states already have total or near-total bans on the books that are currently blocked by Roe, aside from Texas. The Texas law banning it after six weeks has been allowed to go into effect by the Supreme Court due to its unusual civil enforcement structure. Four more states are considered likely to quickly pass bans if Roe is overturned.
Sixteen states and the District of Columbia, meanwhile, have protected access to abortion in state law.
The Supreme Court justices generally spend May and June finishing their writing in cases that have been argued and then issuing the remaining opinions before going on a summer break. On the court's calendar, the next day opinions might normally be expected is May 16. — AP
The conflict has entered its seventh day.