Court watchers express shock at leaked SCOTUS draft opinion on abortion

May 3—This story has been updated

FAIRMONT — News that Politico leaked a draft majority opinion in the Dobbs v. Jackson Women's Health Organization abortion case sent shockwaves across West Virginia on Tuesday.

While the high court's final decision is not likely to be issued until next month, many fear that an almost 50-year legal right to an abortion provided by the 1973 landmark Roe v. Wade decision could be stripped away from women in the U.S.

"While the leak itself is shocking, the substance of the decision is more shocking and will have a significant impact on the people's trust in the Court," said Anne Lofaso, who teaches in the West Virginia University U.S. Supreme Court Clinic. "Most Americans do not want Roe overturned. When the outcome of a case hinges on the political makeup of the Court, mistrust builds. When a fundamental right depends on the political makeup of the Court, mistrust accelerates. This is even more true when that right affects a protected class."

Lofaso said that if the draft ruling becomes the final ruling, it would mark the first time that the nation's highest court has erased a fundamental right, which would have a disparate impact on "a protected class," namely women.

"Once the decision is issued, people will naturally compare the draft with the final opinion," Lofaso said. "This further weakens our trust in the Supreme Court. It's like pulling the curtain and realizing the wizard is just a person with human frailties, no more and no less than you or me. This underlines, for all of us to see, that the law is arbitrary. It truly is just what a very few people decide it is going to be."

Abortion continues to be legal in all 50 states, but 22 states have a ban or near-ban — eight weeks or less.

"If Roe and its progeny (Casey in particular) were to be overturned, then those bans would become immediately effective," Lofaso said. "West Virginia currently has a pre-Roe ban that remains on the books and the state constitution does not protect women's reproductive rights."

West Virginia Attorney General Patrick Morrisey described the leak as "absolutely outrageous on every single level."

He said the leak undermines future U.S. Supreme Court decisions and claimed that whoever leaked the draft opinion "wants to destroy the institution of the Supreme Court itself."

Morrisey also said it's too early to discuss the implications of how the SCOTUS decision will impact West Virginia.

"As West Virginians know, I'm strongly pro-life and have called for the U.S. Supreme Court to overturn Roe v. Wade. In the amicus brief that we joined in Dobbs, West Virginia argued that the court should allow states to decide how restrictive they can act regarding abortion. When the Supreme Court's final opinion is published, we will weigh in more formally and work closely with the legislature to protect life in all stages as much as we legally can under the law," Morrisey said.

Meanwhile, the head of West Virginia's only abortion provider said the Women's Health Center of West Virginia remains committed to protecting access to abortion in the Mountain State.

"We know that Roe has never been enough, but in states like West Virginia, it is the only thing protecting our access to abortion," WHCWV Executive Director Katie Quinonez said. "Across the country, we are seeing states destroy abortion access with bans and restrictions, harming our most marginalized neighbors and undermining our human rights. But we know the strength of our movement, and we will not give up."

Quinonez characterized the leak of the draft ruling as "unprecedented."

"This leak is unprecedented but shows us what we already feared: The Justices do not care about pregnant people and are willing to bow to the whims of white supremacists and extremists," Quinonez said. "We know things will likely get worse before they get better. But we're not backing down. Because people deserve abortion on their own timeline, in their own community, and with a provider they trust."

The co-chair of the Charleston-based social action network WV Can't Wait said, for many, their deepest fears are coming true.

"Should this draft opinion become law, half the states in the U.S. will effectively eliminate abortion access — including ours," Katie Lauer said. "Banning abortion will not stop people from needing abortion care. It will just make it more difficult and more dangerous to get it — especially for people who are already carrying the greatest burdens.

"West Virginians are no strangers to crisis and calamity. We are used to being failed by our government. And it is in our blood to fight for each other."

The Times West Virginian reached out to West Virginians for Life representatives in Harrison, Marion and Monongalia counties for comments, but have not received any responses.

Reach Eric Cravey at 304-367-2523.