WASHINGTON — A draft opinion circulated among Supreme Court justices suggests that earlier this year a majority of them had thrown support behind overturning the 1973 case Roe v. Wade that legalized abortion nationwide, according to a report published Monday night in Politico. It’s unclear if the draft represents the court’s final word on the matter.
The Associated Press could not immediately confirm the authenticity of the draft Politico posted, which if verified marks a shocking revelation of the high court’s secretive deliberation process, particularly before a case is formally decided.
The news outlet published what was labeled as a “1st Draft” of the “Opinion of the Court” in a case challenging Mississippi’s ban on abortion after 15 weeks, a case known as Dobbs v. Jackson Women’s Health Organization.
The Supreme Court has yet to issue a ruling in the case, and opinions — and even justices’ votes — have been known to change during the drafting process. The court is expected to rule on the case before its term is up in late June or early July.
The draft is signed by Justice Samuel Alito, a member of the court’s 6-3 conservative majority, who was appointed by former President George W. Bush.
“Roe was egregiously wrong from the start,” the draft opinion states.
“We hold that Roe and Casey must be overruled,” it adds, referencing the 1992 case Planned Parenthood v. Casey that affirmed Roe’s finding of a Constitutional right to abortion services but allowed states to place some constraints on the practice. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
The draft opinion in effect states there is no Constitutional right to abortion services and would allow individual states to more heavily regulate or outright ban the procedure.
Politico said only that it received “a copy of the draft opinion from a person familiar with the court’s proceedings in the Mississippi case along with other details supporting the authenticity of the document.”
Colorado has long recognized legal abortion without any restrictions on when in a pregnancy one can access abortion care.
Sensing the Supreme Court action Politico reported Monday night, state lawmakers earlier this year passed the Reproductive Health Equity Act, which guarantees the right to abortion and other forms of reproductive health care in Colorado regardless of whether Roe v. Wade is overturned. Gov. Jared Polis signed the act into law on April 4.
Demand for abortion care is certain to increase in Colorado in a post-Roe future. Among the U.S. states with “trigger laws” to ban abortion if and when Roe v. Wade falls, many either share a border or are close to Colorado: Idaho, Wyoming, Utah, South Dakota, Oklahoma and Texas.
“We knew this could happen. We knew this was coming,” Colorado House Majority Leader Daneya Esgar, a Pueblo Democrat who sponsored this year’s state law, said by phone Monday night. “We know that there are going to be states where folks don’t have this access and we’re going to be the place they seek. … I’m hoping we have the capacity.”
Denver Post reporter Alex Burness contributed to this report.
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