Leaked abortion opinion draft adds fuel to the fire of political debate over Roe v. Wade
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Local reaction was swift Tuesday to news that the U.S. Supreme Court could be poised to overturn the landmark 1973 Roe v. Wade case that legalized abortion nationwide.
Opinions were sharply divided on what such a ruling could mean on the highly contested issue.
Justice Samuel Alito’s draft opinion on a case challenging a Mississippi law was leaked to Politico, which published a story late Monday. On Tuesday, Chief Justice John Roberts confirmed the draft’s authenticity and called the leak an “egregious breach of trust” and ordered an investigation.
Rep. Joe Morelle, D-Irondequoit, decried the decision in a press conference outside his Rochester office Tuesday morning.
“The Supreme Court is ready to roll back centuries of progress, creating a dystopia where women don’t have control over their own bodies, Morelle said. “This is a blatant attack on women. It is abhorrent.”
Sen. Kirsten Gillibrand, D-NY, suggested that Congess should take steps to preserve abortion rights and that states like New York where choice is already protected by law should prepare for an influx of patients seeking the procedure.
“With far-right justices poised to overturn Roe, the lives of millions of Americans depend on us,” Gillibrand said. “We must codify the right to anabortion into federal law — even if it means eliminating the filibuster. We must flip state legislatures. And states like NY must open our doors.”
Gov. Kathy Hochul, also a Democrat, said people seeking abortions could head to New York. “For anyone who needs access to care, our state will welcome you with open arms. Abortion will always be safe & accessible in New York,” Hochul said in a tweet.
Rep. Chris Jacob, R-Orchard Park, Erie County, expressed his support for the substance of the leaked ruling, but expressed concerns over the consequences of the draft being released.
“This SCOTUS leak represents an unprecedented breach in Supreme Court tradition and procedure. Whoever committed this leak has put the lives of every Justice in danger and must be held accountable to [the] fullest extent,” Jacobs said. “That being said, if this ruling should prove true it would be a major win in the fight to protect vulnerable unborn life in our nation. We must protect the right to life.”
Jacobs’ district includes all or parts of Ontario, Orleans, Wyoming, Livingston, Genesee and Monroe counties.
More: What happens if Roe v. Wade is overturned? What we know about Supreme Court's leaked draft
More: What did Roe v. Wade actually say? The landmark abortion rights ruling, explained
Prepare for delays in service
Michelle Casey, president and CEO of Planned Parenthood of Central and Western New York, said that the organization is preparing to receive a surge of people from states such as Pennsylvania and Ohio that will hit Planned Parenthood sites and affiliates hardest.
“Our safety net system for sexual reproductive healthcare is strained. We don’t have enough access in New York already,” said Casey, who explained that New York residents will have to deal with delays in services. “We need to ramp up our availability and think about how we fund those activities. We want to help as many people as we can.”
Casey said that the organization has been preparing for this situation for a while, and is developing more locations in the region to help relieve the strain. She confirmed the organization still plans to build a permanent facility in Brighton despite delays, and a new center in Buffalo.
Sarah Timmerman, president of the Rochester chapter for the National Organization of Women, said that she is not worried about New Yorkers losing access to abortions in the short term, thanks to state laws that classify abortions as health care and removed them from the penal code in 2019.
“I fear for the majority of people of reproductive age who are not living in a state that is friendly, and what their options will become,” said Timmerman, who believes that New York is already seeing people from other states where abortion bans, or restrictions have taken place.
As of the most recent version of this article, no protests or gatherings were planned for the Rochester region.
Rochester pro-life advocates weigh in
A spokesperson for the Diocese of Rochester said it was in concurrence with the statement issued by Dennis Poust, executive director of the New York State Catholic Conference, which represents the state’s bishops in public policy matters.
"The leaking of an internal draft opinion of the Supreme Court is an egregious breach of trust, and an attack on the integrity of the Judicial Branch of government. When our highest court cannot operate free of political interference or intimidation, it serves as a stark example that nothing is sacred anymore," the statement said. "While we fervently pray for legal protections of unborn children, we will not dignify the goals of the leaker by commenting on the contents of the draft document."
Michelle Sterlace, executive director of Rochester-based Feminists Choosing Life of New York, said in a statement that if the leaked draft becomes the Court's final opinion, her organization is "overwhelmed with gratitude."
"A nation without a U.S. Constitutional right to kill the most dependent and vulnerable among us represents a giant step forward towards rehumanizing humanity," the statement said. "Roe vs Wade allows for the wholesale slaughter of millions of tiny children, who may have been dependent on women's bodies, but from conception always existed as distinct, unique human beings."
Sterlace acknowledged that the ruling would have little impact in New York, but expressed concern it would increase the number of abortions performed in the state. She called on others to step forward to continue the fight.
"It's time all feminists, every justice-driven person, more tangibly and productively draw alongside women and girls potentially facing unplanned pregnancies as well as those that do, particularly the underserved and poor," the statement said. "Now more than ever — post-Roe women and girls need assurances they can fulfill their professional and personal potentials without destroying their offspring. In 'liberal' states like NY babies' lives are still counting on it."
Carol Crossed helped lead the opposition to a proposed new Planned Parenthood clinic in the town of Brighton as part of BRAVE (Brighton Residents Against Violence). She says the release of the draft decision is likely politically motivated.
“The leak may be an effort by a staffer of a pro-Roe justice to try to create momentum for a change in votes among the justices themselves, to force a shift in their decision, as well as to gin up early opposition before it is formally announced," Crossed said. "All the opposition in the world is worth not much once the decision is made public, according to the court’s timeline, probably in June."
Crossed says the draft decision was already fueling political fundraising.
"While I think the leaked draft is spot-on, I am a feminist and a Democrat and many in those political groups support Roe," Crossed said. "This morning’s e-mails are filled with Democrat candidates who are raising early money for campaigns. These Chicken Littles crying that the sky is falling don’t tell you that abortion rights vs. unborn human beings rights will be returned to voters at the state level."
Leaked document is not final
A decision to overrule Roe would lead to abortion bans in roughly half the states and could have huge ramifications for this year's elections. But it's unclear if the draft represents the court’s final word on the matter — opinions often change in ways big and small in the drafting process.
Whatever the outcome, the Politico report late Monday represents an extremely rare breach of the court’s secretive deliberation process, and on a case of surpassing importance.
“Roe was egregiously wrong from the start,” the draft opinion states. It was signed by Alito, a member of the court’s 6-3 conservative majority who was appointed by former President George W. Bush.
The document was labeled 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 court is expected to rule on the case before its term ends in late June or early July.
More: Supreme Court verifies authenticity of leaked opinion in abortion case but says decision not final
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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.
“We hold that Roe and Casey must be overruled,” it states, 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.”
A Supreme Court spokeswoman said the court had no comment and The Associated Press could not immediately confirm the authenticity of the draft Politico posted, which dates from February.
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.”
The draft opinion strongly suggests that when the justices met in private shortly after arguments in the case on Dec. 1, at least five voted to overrule Roe and Casey, and Alito was assigned the task of writing the court's majority opinion.
Votes and opinions in a case aren't final until a decision is announced or, in a change wrought by the coronavirus pandemic, posted on the court's website.
Political impact potentially huge
The report comes amid a legislative push to restrict abortion in several Republican-led states — Oklahoma being the most recent — even before the court issues its decision. Critics of those measures have said low-income women will disproportionately bear the burden of the new restrictions.
The leak jumpstarted the intense political reverberations that the high court’s ultimate decision was expected to have in the midterm election year. Already, politicians on both sides of the aisle were seizing on the report to fundraise and energize their supporters on either side of the hot-button issue.
An AP-NORC poll in December found that Democrats increasingly see protecting abortion rights as a high priority for the government.
Other polling shows relatively few Americans want to see Roe overturned. In 2020, AP VoteCast found that 69% of voters in the presidential election said the Supreme Court should leave the Roe v. Wade decision as is; just 29% said the court should overturn the decision. In general, AP-NORC polling finds a majority of the public favors abortion being legal in most or all cases.
Still, when asked about abortion policy generally, Americans have nuanced attitudes on the issue, and many don’t think that abortion should be possible after the first trimester or that women should be able to obtain a legal abortion for any reason.
Alito, in the draft, said the court can't predict how the public might react and shouldn't try. “We cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work,” Alito wrote in the draft opinion, according to Politico.
People on both sides of the issue quickly gathered outside the Supreme Court waving signs and chanting on a balmy spring night, following the release of the Politico report.
Reaction was swift from elected officials in Congress and across the country.
In a joint statement from Congress' top two Democrats, House Speaker Nancy Pelosi and Senate Majority Leader Chuck Schumer said, “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.”
Mississippi Attorney General Lynn Fitch said in a statement, “We will let the Supreme Court speak for itself and wait for the Court’s official opinion.” But local officials were praising the draft.
“This puts the decision making back into the hands of the states, which is where it should have always been,” said Mississippi state Rep. Becky Currie.
Congress could act, too, though a bill that would write Roe's protections into federal law stalled in the Senate after passing the House last year with only Democratic votes.
Supreme Court's deliberations
At Supreme Court arguments in December, all six conservative justices signaled that they would uphold the Mississippi law, and five asked questions that suggested that overruling Roe and Casey was a possibility.
Only Chief Justice John Roberts seemed prepared to take the smaller step of upholding the 15-week ban, though that too would be a significant weakening of abortion rights.
Until now, the court has allowed states to regulate but not ban abortion before the point of viability, around 24 weeks.
The court's three liberal justices seemed likely to be in dissent.
It's impossible to know what efforts are taking place behind the scenes to influence any justice's vote. If Roberts is inclined to allow Roe to survive, he need only pick off one other conservative vote to deprive the court of a majority to overrule the abortion landmark.
More: Supreme Court deliberations are supposed to be secret. So how did a draft abortion opinion leak?
Twenty-six states are certain or likely to ban abortion if Roe v. Wade is overturned, according to the pro-abortion rights think tank the Guttmacher Institute. Of those, 22 states already have total or near-total bans on the books that are currently blocked by Roe, aside from Texas. The state's law banning it after six weeks has already been allowed to go into effect by the Supreme Court due to its unusual civil enforcement structure. Four more states are considered likely to quickly pass bans if Roe is overturned.
Sixteen states and the District of Columbia, meanwhile, have protected access to abortion in state law.
This year, anticipating a decision overturning or gutting Roe, eight conservative states have already moved to restrict abortion rights. Oklahoma, for example, passed several bills in recent weeks, including one that goes into effect this summer making it a felony to perform an abortion. Like many anti-abortion bills passed in GOP-led states this year, it does not have exceptions for rape or incest, only to save the life of the mother.
Eight Democrat-leaning states protected or expanded access to the procedure, including California, which has passed legislation making the procedure less expensive and is considering other bills to make itself an “abortion sanctuary” if Roe is overturned.
Contributing: Associated Press writers Mark Sherwan, Zeke Miller, Jessica Gresko and Lindsay Whitehurst.
This article originally appeared on Rochester Democrat and Chronicle: NY weighs in on leaked Roe v. Wade Supreme Court draft
