Roe v. Wade: Supreme Court draft opinion that would overturn abortion rights

Roberts is willing, however, to uphold the Mississippi law that would ban abortion at 15 weeks of pregnancy, CNN has learned. Under current law, government cannot interfere with a women’s choice to terminate a pregnancy before about 23 weeks, when a fetus could live outside the womb.

Roberts did not respond to questions from CNN as he left his house Tuesday morning.

At one point, the crowd began to chant, “Hey, hey, ho, ho, Samuel Alito’s gotta go.” “We will not go back.” “Abortion rights are under attack, what do we do, stand up fight back.” “Pack the courts.”

Politico’s publishing of the draft is unprecedented by the high court’s standards of secrecy. The inner deliberations among the justices while opinions are being drafted and votes are being settled are among the most closely held details in Washington.

“This news is simply stunning for the Supreme Court as an institution,” said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law. “Not only is the result it portends — the overruling of Roe and Casey — a shockwave to our constitutional politics, but we have never seen a leak remotely like this from inside the Court, where we’re not just hearing what the result is going to be, but we’re seeing the draft majority opinion in advance. It’s hard to believe that the former doesn’t help to explain the latter, but it’s an earthquake in both respects.”

The case in question is Dobbs v. Jackson. It concerns a challenge to Mississippi’s 15-week ban on abortion and oral arguments were heard on December 1. The release of a final opinion in the case is expected later this Spring or early summer.

In the draft opinion, Alito writes that Roe “must be overruled.”

“The Constitution makes no reference to abortion and no such right is implicitly protected by any constitutional provision,” Alito wrote. He said that Roe was “egregiously wrong from the start” and that its reasoning was “exceptionally weak, and the decision has had damaging consequences.”

He added, “It is time to heed the Constitution and return the issue of abortion to the people’s representatives.”

“That is what the Constitution and the rule of law demand,” he said, according to the draft.

Already nearly half of the states have or will pass laws that ban abortion, while others have enacted strict measures regulating the procedure.

Process of voting

Oral arguments in the case were held on December 1.

Under normal procedure, by the end of that week the justices would have met in their private conference to take a preliminary vote on the issue. They would have gone around the table in order of seniority discussing their take on the case. Roberts would have gone first, with Barrett last.

After that initial tally, if Roberts was in the majority he would assign the majority opinion. Otherwise the most senior justice would have taken that responsibility. After that, draft opinions would go between chambers. In the past, justices have changed their votes and sometimes a majority opinion ultimately becomes a dissent.

A reversal of Roe would leave abortion policy up to individual states and would likely produce a patchwork system where the procedure would remain largely available in Democratic-led states, while Republican-led states would pass extreme limits or outright bans on it.

The Dobbs case was perhaps the most anticipated case of the court’s term, and most court observers expected that the conservative majority was likely to scale back or outright overturn Roe’s holding. At oral arguments, Roberts was the only one of the six Republican appointees who signaled interest in exploring a narrower opinion that would have upheld Mississippi’s law but preserved some protections for abortion rights.

Because it is one of the court’s most high-stakes and contentious decisions, the anticipation was that the opinion would be…