Draft Opinion Overturning 'Roe' and 'Casey' Is Real but Not 'Final,' Supreme Court Says, as Leak Probe Starts

A ruling on abortion access is expected this summer — but the leaked opinion has already roiled the political landscape across the country

Supreme Court Justices
Supreme Court justices. Photo: Erin Schaff-Pool/Getty

A draft majority opinion of the Supreme Court that circulated in February and which would overturn the two landmark court cases guaranteeing nationwide abortion access is indeed authentic, the high court said on Tuesday morning — as officials there also decried the extraordinary leak and ordered an investigation into how the opinion became public.

In a statement, the court also reiterated that the draft of the opinion overruling Roe v. Wade and Planned Parenthood v. Casey, was still just that: a draft.

"Justices circulate draft opinions internally as a routine and essential part of the Court's confidential deliberative work. … It does not represent a decision by the Court or the final position of any member on the issues in the case," the statement continued.

Politico first published the draft of the majority opinion on Monday night.

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The outlet reported that five Republican-appointed justices — Samuel Alito, Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas — had voted together during a private conference after December's oral arguments in Dobbs v. Jackson Women's Health Organization, a case about the constitutionality of a Mississippi ban on abortions after 15 weeks of pregnancy.

The court's nine members regularly gather for private deliberations and informal votes after hearing arguments but before rulings (and dissents) are written and revised.

The process can be fluid in the weeks and months between that time and when opinions are officially issued, and preliminary votes in the majority and minority can both shift.

Still, the five-vote majority after December's oral arguments in Dobbs was unchanged as of this week, according to Politico, with Justice Alito writing a draft of their opinion siding with Mississippi.

The final ruling in Dobbs is expected this summer — but the draft opinion has already roiled the political landscape across the country and foregrounded one of the most debated social issues, even as polling repeatedly shows a majority of Americans support access to abortion in most cases.

If Roe and Casey are both overturned, as per the draft majority opinion Alito wrote in February, abortion access would be decided locally, by each state's legislature.

According to The New York Times, approximately 25 of the states would then be able to ban the procedure.

In Tuesday's statement, Chief Justice John Roberts called the leak an "egregious breach" and a "betrayal" but insisted it would not influence the court's ultimate behavior.

"I have directed the Marshal of the Court [who leads security, decorum and operations] to launch an investigation into the source of the leak," Roberts said.

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The justice, whose potential vote in Dobbs was not reported by Politico, has long taken pains to defend the Supreme Court as an apolitical group that is not acting out personal agendas.

He reacted strongly on Tuesday to the draft opinion being given to the press.

"We at the Court are blessed to have a workforce — permanent employees and law clerks alike — intensely loyal to the institution and dedicated to the rule of law. Court employees have an exemplary and important tradition of respecting the confidentiality of the judicial process and upholding the trust of the Court," Roberts said. "This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here."

A potential ruling being leaked in this way is unprecedented in recent decades, though experts say it is not entirely unheard of throughout history.

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