Washington • The Supreme Court privately voted to strike down the landmark Roe v. Wade case that has guaranteed the right to abortion for nearly a half-century, according to a leaked draft opinion from February published online Monday night by Politico.
In the draft opinion, written by Justice Samuel A. Alito Jr., a majority of the court voted to overturn Roe, according to Politico. Alito called it wrongly decided and said the contentious issue, which has animated political debates in the United States for more than a generation, should be decided by politicians, not the courts.
“We hold that Roe and Casey must be overruled,” Alito writes in the document, labeled the “Opinion of the Court,” according to Politico. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
In Utah, a trigger law banning elective abortions and another outlawing the procedure except in limited circumstances could take effect if Roe is overturned.
Utah’s trigger law, passed in 2020 as SB174, becomes effective on the day that the Legislature’s general counsel certifies to its management committee that a binding court has decided “a state may prohibit the abortion of an unborn child at any time during the gestational period, subject to the exceptions enumerated in this bill.”
The general counsel could, potentially, certify the same day as the Supreme Court’s ruling.
Under Utah’s trigger law, an abortion would only be allowed if:
• It “is necessary to avert the death” or if there is “a serious risk of substantial and irreversible impairment of a major bodily function” of the pregnant woman.
• “Two physicians who practice maternal fetal medicine concur ... that the fetus has a defect that is uniformly diagnosable and uniformly lethal,” or “has a severe brain abnormality that is uniformly diagnosable.”
• The pregnancy was caused by a rape or incest. Before performing an abortion, the physician would have to verify the rape or incest has been reported to law enforcement or the proper authorities.
Otherwise, the nearest states that would still allow abortions are Colorado, Nevada and New Mexico.
If the justices announce a decision along the lines of the early, leaked draft, it would be a seismic change in American law and politics, coming just months before congressional midterm elections that will decide who controls power on Capitol Hill.
Abortion has long split the two parties — and the country — though it had receded as a central issue in recent years. A court decision along the lines of the one in the early draft could spark new political battles in Congress and in states across the country about whether and how the procedure should be limited.
The release of the 98-page document is unprecedented in modern times. In the court’s modern history, early drafts of opinions have never leaked before the final decision is announced. And early drafts of opinions often change by the time the decision from the court is announced.
But if the justices announce a decision along the lines of the early, leaked draft, it would be a seismic change in American law and politics, coming just months before congressional midterm elections that will decide who controls power on Capitol Hill.
The Politico report said the justices voting to support Alito’s opinion were Clarence Thomas, Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett. The news organization said Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan were working on dissents. It was unclear how Chief Justice John G. Roberts Jr. planned to vote.
— The Salt Lake Tribune contributed to this story.