Could Roe v. Wade Leaker Change Supreme Court's Historic Abortion Ruling?

The justices of the Supreme Court found themselves under immense public pressure after a Monday leak of a draft opinion revealed the court allegedly intends to overturn Roe v. Wade.

Any of the judges could still change their minds before the finalized ruling, but doing so could undermine confidence in the Supreme Court's ability to remain apolitical.

Politico obtained a draft opinion written by Justice Samuel Alito that showed a majority of the Supreme Court justices voted in February to overturn the landmark 1973 decision that made abortion legal in all U.S. states. The finalized decision is not expected to be formally released for at least another month, but the leak has already reignited the divisive issue of abortion rights.

In the leaked draft opinion, Alito was joined in his decision by at least four other Republican-appointed justices—Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan were reportedly of the dissenting opinion, while the leaked report did not indicate how Chief Justice John Roberts planned to vote.

On Tuesday, President Joe Biden released a statement that questioned the authenticity of the leak. A spokesperson for the Supreme Court verified that the draft opinion document was real but emphasized it was not a final decision. Chief Justice Roberts also issued a statement that said he directed the marshal of the court to launch an investigation.

U.S. Supreme Court Building
A leaked draft majority opinion obtained by Politico shows Supreme Court Justice Samuel Alito allegedly wrote that Roe v. Wade should be overturned, but justices involved in that decision could still change their minds. In this photo, U.S. Supreme Court Police officers set up barricades on the sidewalk as activists demonstrate in front of the U.S. Supreme Court Building on May 3 in Washington, D.C. Getty Images

The identity of the person who leaked the draft opinion is currently not known, nor is the motivation behind why it was leaked. Two logical reasons why it was released could be to pressure the judges to change their minds, or conversely, to bolster the judges to stay the course on their opinions.

"There is nothing to stop a Supreme Court justice from changing his or her vote until a case is finally handed down by the Court, but the psychological pressures are obviously considerable, not because of public protests and the like but because of the concern of all the justices for their professional reputation with colleagues on the Court and with the bench and bar throughout the nation," legal scholar Laurence Tribe told Newsweek.

There is precedent of justices changing their minds, even in regards to Roe v. Wade. In 1992, The Washington Post reported that then-Justice Anthony Kennedy originally planned to side with the other conservative judges of the court on the decision in the Planned Parenthood of Southeastern Pennsylvania v. Casey case.

Months later, Kennedy flipped his vote, resulting in the Supreme Court reaffirming Roe v. Wade in 1992 instead of overturning it. The Post wrote many people in "court circles" cited Tribe for playing a part in Kennedy changing his vote. The newspaper noted there was no evidence to show Tribe, the Carl M. Loeb University professor and professor of constitutional law emeritus at Harvard Law School, engaged in any unethical contact.

Bruce Peabody, a professor of government and politics at Fairleigh Dickinson University, also told Newsweek that while unusual, the Supreme Court "can certainly change its mind through the drafting process."

He cited the 2012 National Federation of Independent Business v. Sebelius ruling, saying "the conservative dissents from the majority opinion written by Chief Justice Roberts have a tone and nature that look like they may have once been language from a majority opinion (striking down the Affordable Care Act)."

"There are even some cases where the Court changes its opinions (in substantive ways) after it issues its preliminary 'slip' opinions—although these kinds of changes wouldn't alter the actual outcome in the case (who wins and who loses)," Peabody wrote in an email to Newsweek. "Chief Justice Taney added almost twenty pages to the infamous Dred Scott decision between when the case was initially announced and finally printed."

Peabody added, "Of course, now that the draft of the abortion case is leaked, it might make the majority opinion holders 'dig in' even further, lest they be seen as caving to public pressure."

Doron M. Kalir, a clinical professor of law at Cleveland State University, told Newsweek that he likewise feels the justice are "pretty locked in" and probably won't change their minds. He also said the end of federally protected abortion rights could just be the start.

"Same-sex marriage is on the chopping block and any other rights can now be overturned overnight just because it's a different set of justices now on the Supreme Court," Kalir said, adding the decision to overturn Roe v. Wade "is nothing short of an earth constitutional earthquake."

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