A leaked initial draft majority opinion suggests the US Supreme Court has voted to overturn the Roe v Wade decision that legalised abortion nationwide, Politico has reported.
Justice Samuel Alito is quoted as saying Roe was wrong from the start. Photo: AFP
Reuters was not immediately able to confirm the draft independently. If correct it would an unprecedented disclosure of a draft Supreme Court opinion.
The Supreme Court and the White House declined to comment.
"Roe was egregiously wrong from the start," Justice Samuel Alito wrote in the draft opinion which is dated 10 February, according to Politico.
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.
"It is possible there have been some changes since then (Feb 10)," Politico reporter Josh Gerstein, who broke the story, said on MSNBC late on Monday.
After an initial vote among the justices following the 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.
According to the Politico reported 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 1973 Roe v. Wade decision recognised that the right to personal privacy under the US Constitution protects a woman's ability to terminate her pregnancy.
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 the Roe and Casey rulings.
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.
"We need to turn out the vote like we've never turned out the vote before," Democratic Representative 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 Senator 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.
New York Governor Kathy Hochul, a Democrat, said on Twitter that New York would "always guarantee" the right to abortion.
"This is an absolutely disgraceful attack on our fundamental right to choose, and we will fight it with everything we've got," Hochul said on Twitter in a reaction to Politico's report.
How US states are taking sides on abortion
If the US Supreme Court votes to overturn the Roe v. Wade decision that legalized abortion nationwide, conservative states will have more confidence that their new limits on abortion will stand while liberal states will feel more urgency to protect and expand abortion rights.
Here are some restrictions and protections state legislatures have taken up in 2022:
Restrictions
Arizona: Republican Governor Doug Ducey in March signed a bill banning abortions after 15 weeks of pregnancy. The measure makes exceptions for medical emergencies, but not for rape or incest. It will take effect later this year if not blocked in court.
Florida: Republican Governor Ron DeSantis in April signed a 15-week abortion ban, which allows exceptions for medical emergencies or if the fetus has a fatal abnormality. The exceptions do not allow for abortion past 15 weeks in case of rape, incest or human trafficking. The ban is due to take effect on 1 July.
Idaho: Republican Governor Brad Little signed a six-week abortion ban in March that allows family members of the fetus to sue providers who perform abortions past that point, similar to a Texas law enacted last year. The Idaho law was due to take effect in April, but has been blocked by the state Supreme Court pending legal review.
Kentucky: The legislature in April overrode Democratic Governor Andy Beshear's veto to enact several abortion restrictions, including a 15-week ban, a requirement that fetal remains be cremated or interred, and a requirement that a combination birth-death or stillbirth certificate be issued for each abortion. The law took immediate effect, suspending clinics' ability to provide abortions for eight days until a US judge temporarily blocked its enforcement.
Oklahoma: The Senate in April passed a ban on all abortions except in cases of medical emergency, rape or incest. It relies on private citizens to sue providers and any person who "aids or abets" abortions to be enforced. The House must approve the Senate's amendments before it heads to Republican Governor Kevin Stitt for signing. With the governor's approval, it would take effect immediately.
Also in April, Oklahoma's legislature approved a ban on abortions after six weeks of pregnancy, which relies on the same lawsuit enforcement mechanism. It will take immediate effect if signed by Stitt.
Stitt signed a bill in April banning abortion except in medical emergencies and penalizing providers who violate the law with up to $100,000 in fines and 10 years in prison. The law is due to take effect in August if not blocked in court.
South Dakota: Republican Governor Kristi Noem signed a bill in March requiring women to make three in-person doctor's visits to complete a medication abortion. The legislation's implementation depends on the outcome of a federal court case.
Protections
Colorado: Governor Jared Polis, a Democrat, signed a bill on 4 April codifying the right to have an abortion. The measure immediately took effect.
Connecticut: The legislature passed a bill in April that protects anyone who provides abortions, has an abortion or assists someone having an abortion from other states' restrictions. Among other provisions, the measure bars state agencies from assisting in interstate investigations seeking to hold someone civilly or criminally liable for getting or aiding an abortion. The bill awaits Democratic Governor Ned Lamont's signature.
Maryland: The legislature passed a bill that expands the definition of who can provide abortions to include any "qualified provider," establishes a state-funded abortion provider training program and requires most insurance plans to cover the cost of abortions. Republican Governor Larry Hogan vetoed the bill, but the state's Democratic-controlled legislature overrode his veto on 9 April and the law is due to take effect 1 July.
Vermont: The Democratic-led legislature in February passed a constitutional amendment that guarantees the right to abortion. It will be on the ballot for voters to approve in November.
-Reuters