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Explosive leaked draft in abortion case reveals Supreme Court on verge of overturning Roe

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WASHINGTON – A draft Supreme Court opinion published by Politico on Monday suggested the court is considering a decision that would overturn the landmark 1973 Roe v. Wade decision that established a constitutional right to abortion.

The stunning leak of a draft opinion, which USA TODAY could not independently verify, set off an unexpected firestorm around one of the nation's most divisive culture war issues and simultaneously raised questions about the court's deliberations and its ability to keep those discussions secret.

"Roe was egregiously wrong from the start," Associate Justice Samuel Alito wrote in the draft obtained by Politico. "We hold that Roe and Casey must be overruled."

A Supreme Court spokeswoman declined to comment.

Though Supreme Court deliberations have leaked before, including during President Richard Nixon's administration, the release of a draft opinion from the closely guarded high court was highly unusual in modern times. Politico said the draft was circulated in February, about two months after oral argument in the blockbuster case.

If the opinion is what the nation's highest court actually hands down, it would represent a profound change in how reproductive rights have been understood in the United States for decades. Such an outcome would largely turn abortion over to individual states, about half of which are expected to ban or place severe limitations on the procedure.

About 49% of the nation said that abortion should be "legal and accessible" in USA TODAY/Ipsos poll published this month. Only about a third of Republicans felt that way, compared with 73% of Democrats.

The report of the draft opinion drew a visceral reaction from both sides of the abortion debate.

"If the Supreme Court does indeed issue a majority opinion along the lines of the leaked draft authored by Justice Alito, the shift in the tectonic plates of abortion rights will be as significant as any opinion the court has ever issued," said American Civil Liberties Union Executive Director Anthony Romero.

Anti-abortion groups, many of which have fought against the Roe opinion for more than a generation, praised the draft.

"We are encouraged by the categorical boldness of the draft that corrects the erroneous precedent of Roe," said Kimberlyn Schwartz, a spokeswoman for Texas Right to Life. "We prayerfully anticipate the complete reversal of Roe."

Abortion: Four clues the Supreme Court is heading toward a major shift on Roe

Justices often circulate drafts and it was not clear, based on the document Politico posted alone, how much support Alito's writing currently has. Citing a "person familiar with the deliberations," Politico said four of the other Republican-appointed members – Associate Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – had voted with Alito during the justices private discussion after oral arguments in the case in December.

The circulation of drafts is one part of the court's process. As those drafts circulate, justices write dissents and concurrences to try to convince their colleagues of other points of view. The process is fluid and votes can and often do change. The court's opinion was not expected until the final day of its term, in June or July.

Citing unnamed sources, CNN reported Monday that Chief Justice John Roberts did not want to completely overturn Roe, a position he seemed to signal during oral arguments in December. Roberts was willing to uphold the Mississippi law, according to CNN.

"This is an earthquake – for what it portends for the future not only of Roe, but of all implied fundamental rights, and for the stunning breach of the court’s norms of confidentiality," tweeted Stephen Vladeck, a professor at the University of Texas at Austin School of Law.

The justices are considering a direct challenge to Roe from Mississippi, which passed a ban on most abortions after 15 weeks of pregnancy.

A majority of the court signaled during oral arguments that it would uphold Mississippi’s ban. In nearly two hours of debate, the justices wrestled with the potential impact of overturning Roe on people seeking an abortion, as well as how a heavily divided nation might perceive the Supreme Court if it abandons the watershed ruling from 1973.

Each of the six conservative justices asked questions that suggested at least some skepticism with the position taken by abortion rights groups – and the Biden administration – that allowing Mississippi's ban would not only violate the Constitution but also raise questions about the court's neutral interpretation of the law.

The White House declined to comment on the Politico report.

Contributing: Joey Garrison.

This article originally appeared on USA TODAY: Roe v. Wade: In leaked opinion court considering upending abortion law