If majority holds and leaked draft is real, SCOTUS could side with Mississippi’s argument for states’ rights in defense of its 15-abortion ban.
Late Monday evening, Politico reported on a leaked draft of a majority opinion in Mississippi’s 15-week abortion ban case, known as Dobbs, currently before the U.S. Supreme Court.
That draft opinion authored by Justice Samuel Alito states by Roe and Casey, both prior decisions of the Court that allowed abortion and put forth the notion that ending unborn life was a right, should be overruled and that the power to decide this issue should be returned to the people at the state level.
“We hold that Roe and Casey must be overruled,” Justice Alito writes in the leaked document, adding, “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
If this proves true and there are five Justices in the majority, this ruling would align with Mississippi’s argument made by Attorney General Lynn Fitch and her staff in December when presenting at the Supreme Court.
“The Court has acknowledged that states have the authority to promote legitimate interests, including protecting women’s health and defending life; but its abortion precedents have denied the people and their elected leaders the ability to fully do so,” Attorney General Fitch said in September 2021, “In fact, the Roe decision shackles states to a view of facts that is decades old, such that while science, medicine, technology, and culture have all rapidly progressed since 1973, duly enacted laws on abortion are unable to keep up. With Dobbs, the Supreme Court can return decision making about abortion policy to the elected leaders and allow the people to empower women and promote life.”
In response to the leaked draft opinion, Fitch’s office issued a release noting that the contents of the article by Politico and the veracity of the opinion to which it linked could not be verified.
“We will let the Supreme Court speak for itself and wait for the Court’s official opinion,” Fitch was quoted as saying.
The Mississippi Legislature passed a 15-week abortion ban, HB 1510, in 2018. It was signed into law by former Governor Phil Bryant. The law was overturned by U.S. District Court Judge Carlton Reeves. Judge Reeves ruled that the law was unconstitutional, saying that the “established medical consensus” recognizes a viable fetus closer to 23 or 24 weeks. The 5th U.S. Circuit Court of Appeals upheld his ruling when the court blocked the law from taking effect.
Attorney General Fitch took up the fight against that Appeals Court ruling in May 2021, asking the U.S. Supreme Court to recognize the right of the people to pass laws that protect life and women’s health and to address legitimate interests of the State. That hearing was held in December 2021 and a ruling was expected in June 2022.
Politico writes 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.” Such a leak is unprecedented and undermines the Court.
Those who follow the U.S. Supreme Court proceedings closely know the rift this leak in the Court staff and from the justices that this will cause. SCOTUSBlog, a well-known outlet that tracks cases and reports on the inner workings of the high court, tweeted, “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.”
It appears that the leak was intended to put pressure on the Justices ahead of the official ruling. As SCOTUSBlog writes, “Politico reports that the 5 original votes to overturn Roe are ‘unchanged *as of this week*,’ but does not report (and the leaker would know) that they have all said they will join the Alito opinion. At least 1 is apparently uncommitted. Hence the leak?”
U.S. Senator Josh Hawley of Missouri was quick to point out the intimidation meant by the leak.
“The left continues its assault on the Supreme Court with an unprecedented breach of confidentiality, clearly meant to intimidate. The Justices mustn’t give in to this attempt to corrupt the process. Stay strong,” Hawley tweeted.
The left continues its assault on the Supreme Court with an unprecedented breach of confidentiality, clearly meant to intimidate. The Justices mustn’t give in to this attempt to corrupt the process. Stay strong https://t.co/1Ibbe0t2I3
— Josh Hawley (@HawleyMO) May 3, 2022
Mississippi Congressman Steven Palazzo was encouraged by the news, tweeting that he hoped the leak is how the Court rules.
Let’s hope this is more than just a leak and is how the court rules. It’s time to stop giving people a loophole to murder innocent lives. https://t.co/N0iBFETs0X
— Cong. Steven Palazzo (@CongPalazzo) May 3, 2022
Y’all Politics will continue to track this developing story.