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U.S. Supreme Court draft suggests majority set to overturn Roe v. Wade, Politico reports

Neal Katyal, a lawyer who regularly argues before the court, said if the report was accurate it would be 'the first major leak from the Supreme Court ever.'

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Abortion rights advocates and anti-abortion protesters demonstrate in front of the U.S. Supreme Court on Dec. 1, 2021, in Washington, D.C.
Kent Nishimura / Los Angeles Times / TNS
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WASHINGTON --- A leaked initial draft majority opinion suggests the U.S. Supreme Court will vote to overturn the Roe v. Wade decision that legalized abortion nationwide, Politico reported on Monday.

The unprecedented leak from the conservative-majority Supreme Court sent shock waves through the United States, not least because the court prides itself on keeping its internal deliberations secret and leaks are extremely uncommon.

Reuters was not able to confirm the authenticity of the draft. The Supreme Court and the White House declined to comment.

“Roe was egregiously wrong from the start,” conservative Justice Samuel Alito wrote in the draft opinion, which is dated Feb. 10, according to Politico, which posted a copy online.

Based on Alito's opinion, the court would find the Roe v. Wade decision that allowed abortions performed before a fetus would be viable outside the womb -- between 24 and 28 weeks of pregnancy -- was wrongly decided because the U.S. Constitution makes no specific mention of abortion rights.

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"Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each state from regulating or prohibiting abortion," Alito said, according to the leaked document.

The news broke a little more than six months before the midterm elections that will determine if Democrats hold their razor-thin majorities in the U.S. Congress for the next two years of President Joe Biden's term in office.

Abortion is one of the most divisive issues in U.S. politics and has been for nearly a half century.

Four of the other Republican-appointed justices -- Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett -- voted with Alito in the conference held among the justices, the report added.

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Members of the Supreme Court pose for a group photo at the Supreme Court in Washington, D.C., on April 23, 2021. Seated from left: Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor. Standing from left: Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett.
Erin Schaff / Pool/Getty Images / TNS

After an initial vote among the justices following an oral argument, one is assigned the majority opinion and writes a draft. It is then circulated among the justices.

At times, in between the initial vote and the ruling being released, the vote alignment can change. A ruling is only final when it is published by the court.

In a post on Twitter, Neal Katyal, a lawyer who regularly argues before the court, said if the report was accurate it would be "the first major leak from the Supreme Court ever."

The court, which has a 6-3 conservative majority, heard oral arguments in December on Mississippi's bid to revive its ban on abortion starting at 15 weeks of pregnancy, a law blocked by lower courts.

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It appeared based on December's oral argument that a majority was inclined to uphold Mississippi's abortion ban and that there could be five votes to overturn Roe.

The Roe v. Wade decision recognized that the right to personal privacy under the U.S. Constitution protects a woman's ability to terminate her pregnancy.

Christian conservatives and many Republican officeholders have long sought to overturn it.

The Supreme Court in a 1992 ruling called Planned Parenthood of Southeastern Pennsylvania v. Casey reaffirmed abortion rights and prohibited laws imposing an "undue burden" on abortion access.

Mississippi asked the justices to overturn both rulings and Alito's draft opinion largely adopts the Republican state's arguments.

If Roe is overturned, abortion is likely to remain legal in liberal states. More than a dozen states currently have laws protecting abortion rights. Numerous Republican-led states have passed various abortion restrictions in defiance of the Roe precedent in recent years.

Republicans could try to enact a nationwide abortion ban, while Democrats could also seek to protect abortion rights at the national level.

Democrats said the draft opinion undermines the importance of this year's elections, in which they are seeking to maintain control of the House and Senate.

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"We need to turn out the vote like we've never turned out the vote before," Democratic Rep. Jamie Raskin told MSNBC. "The people need to stand up and defend democratic institutions and the rights of the people because the Supreme Court is certainly not doing anything for us."

Republican Sen. Josh Hawley said, without evidence, that the leak was likely from a liberal inside the court.

"The justices mustn’t give in to this attempt to corrupt the process. Stay strong," he said in a Twitter post.

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