Roe v Wade: US Supreme Court 'leak' shows plans to overturn abortion law

Leaked initial draft majority opinion published by 'Politico'

A person holds a sign reading "Women Will Die" as activists gather at the US Supreme Court in Washington, DC. AFP

An anti-abortion protester speaks outside the US Supreme Court after the leak of a draft majority opinion written by Justice Samuel Alito preparing for the court to overturn the Roe v Wade abortion rights decision later this year. Reuters

A protester holds a sign for the pro-choice Planned Parenthood organisation. AFP

The Roe v Wade decision recognised that the right to personal privacy under the US Constitution protects a woman's ability to terminate her pregnancy. Getty Images

A demonstrator outside the court. AFP

A woman cries during the protests. AFP

Demonstrators place candles outside the court. AFP

Protesters chant slogans. Reuters

Police installed metal barricades to prevent protesters from entering the court building. AFP

Demonstrators use candlelight during the evening protest. AFP

US Senator Elizabeth Warren joined abortion rights activists outside the US Supreme Court on Tuesday. Photo: Public Domain

A leaked initial draft majority opinion, which suggests the US Supreme Court will overturn the Roe v Wade decision that legalised abortion nationwide, has been met with anger.

Pro-choice and anti-abortion activists rallied outside the court in Washington after news emerged of the leak, while major political figures including Hillary Clinton and Nancy Pelosi took to Twitter on Monday to share their shock.

Based on the opinion of conservative Justice Samuel Alito, the court would find that the Roe v Wade decision that allowed abortions performed before a foetus would be viable outside the womb ― between 24 and 28 weeks of pregnancy ― was wrongly decided because the US Constitution makes no specific mention of abortion rights.

“Roe was egregiously wrong from the start,” Mr Alito wrote in the draft opinion, which is dated February 10, a copy posted online by Politico showed.

While the Supreme Court has not commented on the leaked document or if its contents are real, Politico said it was shared with them by someone familiar with the court's proceedings into a case involving Mississippi's plan to outlaw most abortions after 15 weeks of pregnancy.

It said the document was 98 pages, including 31 pages appendix on historical state abortion laws and came with citations of previous rulings, books, authorities and 118 footnotes that Politico said were consistent with the court's practice.

The White House has declined to comment.

US Speaker of the House Nancy Pelosi said on Twitter if the report is accurate, the Supreme Court "is poised to inflict the greatest restriction of rights in the past fifty years – not just on women but on all Americans".

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

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

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

Abortion has been one of the most divisive issues in US politics for about 50 years.

"This decision is a direct assault on the dignity, rights and lives of women, not to mention decades of settled law," former US secretary of state Mrs Clinton wrote on Twitter.

"It will kill and subjugate women even as a vast majority of Americans think abortion should be legal. What an utter disgrace."

Republican Senator Tom Cotton said Roe was "egregiously wrong from the beginning".

He wrote on Twitter: "I pray the Court follows the Constitution and allows the states to once again protect unborn life."

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

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.

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.

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 recognised that the right to personal privacy under the US Constitution protects a woman's ability to terminate her pregnancy.

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