Supreme Court Chief Justice John Roberts is likely to break with his conservative colleagues and vote with liberals against overturning Roe v. Wade
Conservative Justice John Roberts is expected to join liberals on the Supreme Court bench in voting against overturning landmark abortion case Roe v. Wade.
The Supreme Court’s Chief Justice is against completely overturning Roe v. Wade and would therefore likely dissent from Justice Samuel Alito’s draft opinion and vote with the court’s three liberal justices, sources told CNN.
Despite voting against an entire overturn, Roberts is willing, according to the Tuesday report, to uphold the Mississippi law that would ban abortion at the 15-week mark of pregnancy.
The laws created in the aftermath of the Roe v. Wade decision made it so the government cannot interfere with a woman’s ability to terminate a pregnancy before the point when a baby can live outside its mother’s womb, which is around 23 weeks into a pregnancy.
The Supreme Court currently sits at a 6-3 conservative majority, but Roberts has more recently and consistently voted with members of the court that were nominated by Democratic presidents.
If he goes forward with dissenting from his conservative colleagues, the Justices that would make up the majority overturning Roe are Alito as well as Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
Conservatives saw a major win during the final months of former President Donald Trump’s time in office when he was able to replace late liberal Justice Ruth Bader Ginsburg with conservative Justice Amy Coney Barrett – solidifying the right-leaning of the bench.
Republican lawmakers are demanding that the person behind a leaked Supreme Court memo indicating the end of federal abortion rights to be ‘brought to justice.’
Conservatives throughout the country celebrated the news of a Supreme Court draft opinion that is set to overturn the landmark Roe v. Wade case – but have denounced the leak as an attempt to ‘intimidate’ the justices into changing their minds.
Meanwhile progressives led Democrats ‘ outrage over the stunning reversal of high court precedent, with some even renewing calls to end the Senate filibuster. And protesters immediately convened outside the Supreme Court in Washington, D.C. on Monday evening after news broke of the leak.
The White House questioned the validity of the draft opinion, but said decisive action must be taken if it’s true the bench is on track to overturn the landmark abortion law.
‘We do not know whether this draft is genuine, or whether it reflects the final decision of the Court,’ President Joe Biden said in a statement sent out by the White House Tuesday morning.
‘With that critical caveat, I want to be clear on three points about the cases before the Supreme Court,’ he continued.
‘First, my administration argued strongly before the Court in defense of Roe v. Wade… I believe that a woman’s right to choose is fundamental, Roe has been the law of the land for almost fifty years, and basic fairness and the stability of our law demand that it not be overturned.’
Pro-abortion protesters lined up outside the Supreme Court in Washington, D.C. on Tuesday, May 3, 2022 after leaked documents indicated conservatives on the bench will overturn the 50-year ruling under Roe v. Wade that has guaranteed a constitutional right to abortion
If Roberts does vote against overturning the landmark abortion case, the five remaining conservative justices (circled in red) will still have the numbers to reverse the decision with a 6-3 conservative majority bench
This map shows the 26 states where abortion will likely become illegal entirely or partially if the Supreme Court ends Roe v. Wade. Current law allows for abortion up until the point where a baby can survive on its own outside its mother’s womb, which is about the 23-week mark
Enraged demonstrators immediately descended on the Supreme Court Monday night into Tuesday morning after news broke of the leaked draft decision by conservative Justice Samuel Alito. Pictured: A crowd outside the court on Tuesday demands Roe be upheld
He said, secondly, that his administration’s Gender Policy Council and White House Counsel’s Office ‘will be ready when any ruling is issued.’
‘Third, 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. And it will fall on voters to elect pro-choice officials this November,’ he continued in a bid for Democrats in the 2022 midterms.
‘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.’
Representative Alexandria Ocasio-Cortez of New York and Senator Bernie Sanders of Vermont immediately called for Congress to safeguard Roe v. Wade with federal legislation.
‘People elected Democrats precisely so we could lead in perilous moments like these- to codify Roe, hold corruption accountable, & have a President who uses his legal authority to break through Congressional gridlock on items from student debt to climate,’ Ocasio-Cortez wrote on Twitter late Monday night.
She added: ‘It’s high time we do it.’
The firebrand Democrat posed a question to her colleagues asking them what message their outrage would be sending without action.
‘It’s time to be decisive, lead with confidence, fight for a prosperous future for all and protect the vulnerable,’ she said.
Sanders demanded his colleagues scuttle the filibuster to pass pro-choice legislation with a simple majority.
‘Congress must pass legislation that codifies Roe v. Wade as the law of the land in this country NOW. And if there aren’t 60 votes in the Senate to do it, and there are not, we must end the filibuster to pass it with 50 votes,’ the Independent senator said.
Democrats previously tried to scuttle the filibuster to pass federal voting rights legislation with only their 50 seats in the chamber plus Vice President Kamala Harris’ tie-breaking vote, but the effort failed in the face of moderate opposition within their own party.
Brian Fallon, Hillary Clinton’s former 2016 press secretary who is co-founder and executive director of Demand Justice, publicly pondered if the leaker was a ‘brave clerk’ hoping public outrage would reverse the monumental decision.
‘Is a brave clerk taking this unprecedented step of leaking a draft opinion to warn the country what’s coming in a last-ditch Hail Mary attempt to see if the public response might cause the Court to reconsider?’ Fallon questioned.
On the other side of the aisle, Republicans are demanding investigations into who leaked a Supreme Court draft opinion for the first time in history.
Protesters descended upon the court late on Monday night after Politico reported the Supreme Court’s bombshell draft opinion to overturn Roe v. Wade
Democrats across the country have reacted with outrage, with many renewing calls for the landmark ruling to be codified into federal law
GOP Senator Mike Lee of Utah said whoever leaked the explosive memo ‘needs to be brought to justice’ in an interview on Fox News soon after the report.
‘This entire kerfuffle has been brought about as a result of an unscrupulous person trying to subvert 235 years of tradition, trying to subvert the way the Supreme Court operates,’ Lee said.
He also released a statement on Monday night calling the decision ‘well-reasoned’ but further panned the leak as ‘dangerous, despicable, and damaging.’
The Utah conservative is on a Senate subcommittee that will hold a hearing at 10 a.m. on Monday about ‘transparency and accountability for 21st century courts.’
‘I have questions about whether that person should ever be allowed to practice law. That something that will be worked out in due time. These are small circles. As a former Supreme Court clerk I can tell you there are very few people in the entire building who had access to the opinion,’ he said on Fox.
‘I am virtually certain there are number people inside the court, probably figured out who it is. That person needs to be brought to justice and held to account to what they did. This is the first and what I predict will be a series of other attempts to delegitimize the supreme court of the United States in the coming months.’
Tennessee’s Republican Senator Marsha Blackburn tweeted: ‘I have no doubt that the Chief Justice will work to root out the radical activist that betrayed the sacred tradition of the court. The leaker must be immediately removed from their position and exiled from the legal community.’
Republican Rep. Greg Steube of Texas said: ‘It is unfortunate that the news of the greatest victory for the Pro Life movement comes on the heels of one of the most profound breaches of trust the Court has ever seen.’
Senator Tom Cotton of Arkansas called on President Joe Biden’s Justice Department to ‘get to the bottom’ of the matter and, like his colleagues, shared praise for the high court’s reported decision.
‘The Supreme Court & the DOJ must get to the bottom of this leak immediately using every investigative tool necessary. In the meantime, Roe was egregiously wrong from the beginning & I pray the Court follows the Constitution & allows the states to once again protect unborn life,’ Cotton said on Monday night.
Politico reported Monday night that Justice Samuel Alito, one of six justices appointed by Republican presidents on the nine-member court, wrote a majority draft opinion in February repudiating both Roe and the 1992 Planned Parenthood vs. Casey decision.
Utah GOP Senator Mike Lee called for the leaker to be ‘brought to justice.’ He’s on a Senate subcommittee that will hold a hearing at 10 a.m. on Monday about ‘transparency and accountability for 21st century courts’
‘Roe was egregiously wrong from the start,’ Alito writes in the opinion, which was reportedly circulated among the court members. ‘We hold that Roe and Casey must be overruled,’ he continues in the document, titled ‘Opinion of the Court.’
‘It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.’
Republicans celebrated the decision, calling it a victory for the social conservatives and Christians who have worked for decades in lockstep to reach this moment.
Pro-life group Susan B. Anthony List hailed the report as a victory for their movement.
The opinion draft – originally obtained by Politico – was written by Justice Samuel Alito, one of the six justices appointed by Republican presidents on the nine-member court
‘If the draft opinion made public tonight is the final opinion of the court, we wholeheartedly applaud the decision. The American people have the right to act through their elected officials to debate and enact laws that protect unborn children and honor women,’ SBA List President Marjorie Dannenfelser said. ‘If Roe is indeed overturned, our job will be to build consensus for the strongest protections possible for unborn children and women in every legislature.’
The draft document is not final until the court formally announces its decision in a case, meaning the ruling could technically still be changed. The court is expected to issue its final ruling before its term is up in late June or early July.
That led to speculation from some on the right, including Florida Sen. Marco Rubio, that the Alito draft was leaked in the hopes public outrage could temper the court’s decision.
Indeed, following its release, several notable Democrats have already slammed the decision, saying they will not abide by it.
One Democratic Representative compared the decision to a dystopian novel, The Handmaid’s Tale, while California Gov. Gavin Newsom vowed the state would ‘fight like Hell’ to oppose the ruling.
‘Our daughters, sisters, mothers and grandmothers will not be silenced,’ Newsom tweeted Monday night. ‘The world is about to hear their fury.’
California Gov. Gavin Newsom said the ‘world is about to hear [the] fury’ of ‘our daughters, sisters, mothers and grandmothers’ as he vowed to fight back against the decision
Republican Sen. Marco Rubio, meanwhile, questioned why the opinion was leaked
Reaction to the news of Alito’s draft opinion was swift Monday night, with conservative lawmakers celebrating the news after decades of fighting for an end to abortion rights – though they raised doubts about why the decision was leaked in the first place.
Mike Gibbons, who is currently facing Trump-endorsed candidate JD Vance in the Republican primary for an Ohio Senate seat, wrote that the decision marked a ‘huge pro-life victory,’ noting it’s ‘great to see the Court recognize all life is protected under the Constitution.
‘We still have to make sure we elect candidates that will continue to defend the unborn, which is exactly what I’ll do in the U.S. Senate.
Others, though, raised doubts about why the opinion was leaked to POLITICO, with Marco Rubio writing: ‘The next time you hear the far left preaching about how they are fighting to preserve our Republic’s institutions and norms remember how they leaked a Supreme Court opinion in an attempt to intimidate the justices on abortion.’
Republican Josh Hawley, of Missouri, also tweeted that the leak is ‘an unprecedented breach of confidentiality, clearly meant to intimidate.’
‘The Justices mustn’t give in to this attempt to corrupt the process,’ Hawley wrote. ‘Stay strong.’
Embattled Congressmember Madison Cawthorn also tweeted that the story ‘was meant to intimidate the Supreme Court into backing down.’
‘Pray for the end of Roe v. Wade. Pray the Court will defend innocent life. Pray the Court will stand strong,’ he urged his followers, noting: ‘Evil MUST not triumph. Science, common sense, and LIFE will win.’
And Rep. Marjorie Taylor Greene, of Georgia, said in a statement she is ‘overwhelmed with emotion because this is the best news of our lifetime.
‘This is a great victory for God and the unborn who have been innocently slain for years, my entire lifetime,’ she said.
‘I want to urge everyone to continue to pray, people all over our country, people all over our world, have been praying to end abortion.
‘I want you to understand that there is going to be a major pushback in our country because there’s going to be people that are going to fight to keep it and they’re going to fight keep murdering the innocent unborn.
‘I want you to dig in in prayer and faith and continue to pray that this actually comes true when they do release their opinion that Roe v Wade will be overturned and abortion will end and this will return the rights back to the states.
‘I urge every single strong pro-life state to end it,’ she wrote.
On the left, Democrats and abortion rights activists slammed the decision – saying it is a ‘nightmare scenario’ as they vowed to fight the ruling.
In a statement following the news, Planned Parenthood CEO Jodi Hicks said: ‘This is the nightmare scenario we in the reproductive health, rights, and justice space have been sounding the alarm about and especially once the U.S. Supreme Court had a conservative majority.
‘And now, if this opinion truly is reflective of the final decision of the majority of the U.S. Supreme Court Justices, then even if abortion remains legal today, we are just days away from more than 26 states banning access to abortion services, essential and safe health care that has been a constitutional right for nearly 50 years.’
‘Make no mistake about it, the plan has always been to ban and criminalize abortion ever since 1973 when Roe v. Wade was decided,’ she claimed.
Rubio questioned the leak of Alito’s decision as a liberal plot on Monday night
Conservatives celebrated the news on Twitter Monday night – even as they questioned the leak
A number of Democrats have since come out against the decision, with Senate Majority Leader Chuck Schumer and House Speaker Nancy Pelosi saying in a joint statement that the decision ‘would go down as an abomination, one of the worst and most damaging decisions in modern history.’
They also used the opportunity to slam former President Trump, saying: ‘Several of these conservative justices, who are in no way accountable to the American people, have lied to the US Senate, ripped up the Constitution and defiled both precedent and the Supreme Court’s reputation – all at the expense of tens of millions of women who could be stripped of their bodily autonomy and the Constitutional rights they’ve relied on for half a century.
‘The party of Lincoln and Eisenhower has now completely devolved into the party of Trump,’ the two top Congressional Democrats continued, adding: ‘Every Republican Senator who supported Sen. McConnell and voted for Trump justices pretending that this day would never come will now have to explain themselves to the American people.’
And one-time Democratic presidential candidate Hillary Clinton also tweeted Monday night she is ‘not surprised’ by the news.
‘This decision is a direct assault on the dignity, rights and lives of women, not to mention decades of settled law,’ she wrote. ‘It will kill and subjugate women even as a vast majority of Americans think abortion should be legal.
‘What an utter disgrace.’
Sen. Majority Leader Chuck Schumer and House Speaker Nancy Pelosi issued a joint statement following the news – apparently using the opportunity to slam former President Donald Trump
Former Democratic presidential candidate Hillary Clinton also tweeted that she was ‘not surprised’ by the news, but thought it was an ‘utter disgrace’
Many have now said they would fight the decision if it were passed – either at the federal or the state level.
In New Jersey, Gov. Phil Murphy reminded his followers that he signed into law the Freedom of Reproductive Choice Act, which codifies the right to an abortion into New Jersey law.
‘New Jersey will not go backwards on reproductive rights,’ he wrote in a tweet.
Meanwhile, Minnesota Gov. Tim Walz said abortions rights would not be overturned ‘on my watch,’ and New York Gov. Kathy Hochul also promised that ‘abortion will always be safe and accessible in New York,’ saying it will welcome anyone who says they need an abortion ‘with open arms.’
‘I refuse to let my new granddaughter have to fight for the rights that generations have fought for & won, rights that she should be guaranteed,’ Hochul tweeted.
At the same time, New York Attorney General Letitia James also promised in a tweet to ‘do everything in our power to protect the right to an abortion’ adding, ‘Congress must act immediately to do the same.’
And in Michigan, Gov. Gretchen Whitmer said she will ‘fight like hell to make sure abortion remains safe, legal and accessible in our state.’
Sen. Elizabeth Warren also branded the Supreme Court ‘extremist’ in a tweet saying it will ‘impose its far-right, unpopular views on the entire country.
‘It’s time for the millions who support the Constitution and abortion rights to stand up and make their voices heard,’ Warren wrote. ‘We’re not going back—not ever.’
Prominent Democrats from across the country raged against the news on Twitter, as several Democratic governors vowed to protect abortion rights in their states
Maryland Democrat Rep. Jamie Raskin, meanwhile, warned that Alito’s decision could also lead to bans on birth control as he claimed the decision is reminiscent of The Handmaid’s Tale.
He was referring to the novel by Margaret Atwood – which was later turned into a television show. In both iterations, women are forced by the state to give birth.
‘The basic legal claim here is that the word ‘abortion’ doesn’t appear in the Constitution, and of course it doesn’t appear in the Constitution,’ Raskin, a Constitutional lawyer, explained to MSNBC’s Rachel Maddow Monday night.
‘But the Supreme Court in 1973, in Roe v. Wade or Griswold v. Connecticut – which was a 1965 decision by the Supreme Court striking down a law banning birth control, even for married couples in Connecticut – the Supreme Court said that the due process liberty clause include a right to privacy, over intimate decision making.
‘So the point is that Justice Alito’s decision would also apply, presumably, to the right to privacy in contraception,’ he continued. ‘If Casey is to fall, if Roe v. Wade is to fall, then Griswold v. Connecticut presumably is to follow as well because the word ‘contraception’ or ‘birth control’ doesn’t appear in the Constitution [either].
‘So this would appear to be an invitation to have Handmaid’s Tale-type anti-feminist regulation and legislation all over the country,’ Raskin concluded.
Maryland Rep. Jamie Raskin compared a draft Supreme Court opinion overturning Roe v. Wade to The Handmaid’s Tale on Monday night
He explained in an interview with MSNBC’s Rachel Maddow, left, that the decision could also jeopardize access to birth control
Raskin was referencing a Margaret Atwood novel – which later inspired a television show – in which women are forced by the state to give birth
The Supreme Court’s draft decision has shaken the Supreme Court to its core, with barricades posted around the building shortly after the report was posted online.
The highly-respected SCOTUSblog, which covers the court in-depth, noted: ‘The document leaked to Politico is almost certainly an authentic draft opinion by J. Alito that reflects what he believes at least 5 members of the Court have voted to support — overruling Roe. But as Alito’s draft, it does not reflect the comments or reactions of other Justices.’
‘It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin,’ SCOTUSblog tweeted.
Other observers called it a crisis for Roberts’ tenure as chief justice.
‘The article represents the greatest crisis that Chief Justice John Roberts has faced in his tenure on the Court,’ wrote legal scholar Jonathan Turley.
Turley also pointed out the leak happened to put pressure on the court to change its ruling before it’s publicly announced.
‘The most likely motivation is obviously to pressure the Court and push the legislation in Congress on a federal abortion law before the midterm elections. It will also likely renew the call for court packing,’ he added.
And Democratic campaign strategist Brian Fallon tweeted: ‘Is a brave clerk taking this unprecedented step of leaking a draft opinion to warn the country what’s coming in a last-ditch Hail Mary attempt to see if the public response might cause the Court to reconsider?’
Such a ruling would immediately become an issue in the 2022 midterm election where Democrats are struggling to keep control of Congress.
Abortion would also become a major political issue in governors’ races with states being given the right to determine whether or not to allow the procedure.
Roe v. Wade: The landmark 1973 Supreme Court decision that legalized abortion in America
Norma McCorvey, known as ‘Jane Roe’, is pictured in January 1983. A decade earlier she had won a landmark abortion case – but the baby she wished to abort, Shelley Lynn Thornton, was born before the case concluded
The original Roe v. Wade case was filed in 1971 by Norma McCorvey, a 22-year-old living in Texas who was unmarried and seeking a termination of her unwanted pregnancy.
She married at the age of 16, but separated shortly after while she was pregnant. She gave custody of her daughter to her mother.
She gave a second child up for adoption, but when she got pregnant a third time she decided to have an abortion.
She said she couldn’t afford to travel to one of the handful of states where it would have been legal.
Because of state legislation preventing abortions unless the mother’s life is at risk, she was unable to undergo the procedure in a safe and legal environment.
So McCorvey sued Henry Wade, the Dallas county district attorney, in 1970. The case went on to the Supreme Court, under the filing Roe vs Wade, to protect McCorvey’s privacy.
Sarah Weddington and a former classmate, Linda Coffee, brought a class-action lawsuit on behalf of a pregnant woman challenging a state law that largely banned abortions.
She had been among only five women out of a class of 1,600 to graduate with a law degree from the University of Texas in 1967.
In 1973, the U.S. Supreme Court recognized a woman’s constitutional right to an abortion in Roe v. Wade. The landmark ruling legalized abortion nationwide but divided public opinion and has been under attack ever since.
The landmark ruling saw abortions decriminalized in 46 states, but under certain specific conditions which individual states could decide on. For example, states could decide whether abortions were allowed only during the first and second trimester but not the third (typically beyond 28 weeks).
Among pro-choice campaigners, the decision was hailed as a victory which would mean fewer women would become seriously – or even fatally – ill from abortions carried out by unqualified or unlicensed practitioners. Moreover, the freedom of choice was considered a significant step in the equality fight for women in the country. Victims of rape or incest would be able to have the pregnancy terminated and not feel coerced into motherhood.
However, pro-lifers contended it was tantamount to murder and that every life, no matter how it was conceived, is precious. Though the decision has never been overturned, anti-abortionists have prompted hundreds of states laws since then narrowing the scope of the ruling.