(NewsNation) — Chief Justice John Roberts confirmed the authenticity of a leaked draft opinion suggesting the U.S. Supreme Court is poised to overturn the landmark 1973 Roe v. Wade case that legalized abortion nationwide.
The draft opinion was made public by Politico in a report published Monday. In the nearly 100-page document, Justice Samuel Alito wrote, “Roe was egregiously wrong from the start.”
Roberts said he has ordered an investigation into the leaked draft opinion, which he called a “breach of trust.”
The opinion “does not represent a decision by the Court of the final position of any member on the issues in the case,” Roberts said in a statement.
“To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed,” Roberts said. “The work of the Court will not be affected in any way.”
The leaked document sparked demonstrations on the steps of the court from those on both sides of the abortion divide.
Police on Tuesday erected a low metal fence outside the Supreme Court, blocking access everywhere but the lowest level of the building’s steps and separating anti-abortion rights and pro-abortion rights demonstrators into separate pens.
Pro-abortion rights protestors held signs saying “Bans off our Bodies” and “Impeach Kavanaugh” while their anti-abortion rights counterparts carried placards that said “Ignore Roe” and “In God we Trust.”
Multiple pro-abortion rights groups called for a 5 p.m. mass gathering at the court, and crowds were expected to build throughout the day as people finished work.
President Joe Biden addressed the leak Tuesday morning, saying his administration has argued for abortion rights before the Supreme Court before.
“Roe has been the law of the land for almost 50 years, and basic fairness and the stability of our law demand that it not be overturned,” Biden said.
After Texas enacted laws restricting women’s reproductive rights, Biden said he directed the Gender Policy Council and White House Counsel’s Office to prepare options for an administration response.
“We will be ready when any ruling is issued,” Biden said.
Speaking to reporters, Biden blasted the Supreme Court opinion as “radical” and contended that it reflects a “fundamental shift in American jurisprudence” that threatens “other basic rights” such as access to birth control and marriage.
The opinion comes from the case Dobbs v. Jackson Women’s Health Organization. Mississippi is one of several states that enacted a ban on abortion after 15 weeks. Proponents of legal abortion argued it went against Roe v. Wade’s ruling that access to abortion was a constitutional right.
Many expected the current court, with a 6-3 conservative majority, could limit the scope of Roe v. Wade in this ruling, but Alito’s opinion suggests the court will go further and allow each state to decide its own abortion laws.
In the document Politico obtained, Alito said abortion should never have been decided by the Supreme Court.
“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” the draft opinion says.
Reaction has included not only comments on the future of abortion rights in this country, but also those apoplectic that something like this could leak.
May Davis, a former legal adviser to President Donald Trump, said the leak might be possible because the Supreme Court operates openly within its building. Drafts are circulated among clerks and other justices.
“It will change the way the Supreme Court operates. It will change the trust in the building,” Davis said on “NewsNation Special Coverage.”
If the court does overturn Roe v. Wade, nearly half the states are widely expected to restrict or ban abortion. According to the Guttmacher Institute, which advocates for reproductive rights, 22 states have abortion-restriction laws on the books that are blocked by Roe v. Wade. They list four other states as “likely” to ban abortion.
Sen. Elizabeth Warren, D-Mass., said the ruling was evidence of “an extremist Supreme Court.” Candidates in Democratic primary races are calling to repeal the Senate filibuster rules and pass a federal bill of abortion rights. Changing the filibuster rules would be the only way Democrats could pass legislation protecting abortion rights, as they require 60 votes to move forward on most legislation.
This is not the first time the Supreme Court has had a chance to overturn Roe v. Wade. In 1992, the court upheld the constitutional guarantee to an abortion in Planned Parenthood v. Casey.
Casey allowed the states to place some restrictions on first-trimester abortions, whereas Roe allowed none.
Casey also established a fetus viability standard after which states could ban abortions, but said state restrictions could not place an “undue burden” on those seeking an abortion.
The ruling avoided a scenario some justices were leery of: the Supreme Court going against its own precedent. It’s happened before — Brown v. Board of Education overturning “separate but equal,” for example. But some worry this could open a door to other reversals, or weaken the court’s credibility.
“It’s going to be damaging to the court,” Aggressive Progressive podcast host Chris Hahn told NewsNation.
