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Leaked draft Supreme Court abortion decision would overturn Roe v. Wade

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An anti-abortion rights activist holds a baby doll during a protest outside the Supreme Court constructing, ahead of arguments within the Mississippi abortion rights case Dobbs v. Jackson Women’s Health, in Washington, U.S., December 1, 2021.

Jonathan Ernst | Reuters

The Supreme Court is poised to overturn the constitutionally protected right to abortion ensured by the nearly 50-year-old Roe v. Wade decision, in accordance with a leaked initial draft of the brand new opinion obtained by Politico.

The draft is written by Justice Samuel Alito, with the concurrence of no less than 4 other conservative members of the Supreme Court.

“We hold that Roe and Casey have to be overruled,” Alito wrote within the 98-page draft decision, which pertains to Mississippi’s strict latest abortion law, in accordance with the report published Monday night.

The draft opinion referenced the 1992 ruling by the high court in Planned Parenthood v. Casey, which further cemented the constitutional protections for ladies.

“It’s time to heed the Structure and return the problem of abortion to the people’s elected representatives,” the justice wrote within the draft published by Politico.

Alito also wrote, “Roe was egregiously mistaken from the beginning,” the report said.

CNBC has been unable to verify the authenticity of the draft opinion, which Politico said had been circulated among the many justices in February, and to which the court’s three liberal members, Stephen Breyer, Elena Kagan and Sonia Sotomayor, are writing dissents.

It’s unclear if there have been subsequent changes to the draft by Alito because it first circulated.

The draft opinion, if formally issued by the court before its term ends in about two months, would depart it to individual states to set any restrictions on when and the way a lady could terminate their pregnancy. Oklahoma’s House on Thursday passed a bill set to be approved by Gov. Kevin Stitt that will ban most abortions after about six weeks of pregnancy.

The Supreme Court ruling anticipated in Alito’s draft also could be a monumental victory for religious conservatives, who for a long time have pushed states to adopt laws restricting abortion rights, and to get the Supreme Court to undo the Roe and Casey

But Politico noted that Supreme Court draft opinions are usually not set in stone, and that justices sometimes change their positions on a case after a duplicate of a draft is circulated amongst them.

Politico also noted that “no draft decision in the fashionable history of the court has been disclosed publicly while a case was still pending. The unprecedented revelation is sure to accentuate the controversy over what was already essentially the most controversial case on the docket this term.”

The highly respected Supreme Court news site SCOTUSblog tweeted: “It’s inconceivable to overstate the earthquake this can cause contained in the Court, by way of the destruction of trust among the many Justices and staff. This leak is the gravest, most unforgivable sin.”

Politico’s executive editor, Dafna Linzer, wrote in an editor’s note that “after an in depth review process, we’re confident of the authenticity of the draft.”

“This unprecedented view into the justices’ deliberations is plainly news of great public interest,” she wrote.

A Supreme Court spokeswoman declined to comment to CNBC on the Politico report.

CNBC Politics

Read more of CNBC’s politics coverage:

Alito’s draft ruling got here in Dobbs v. Jackson Women’s Health Organization, a case centering on a Mississippi law that will ban just about all abortions after 15 weeks of pregnancy. 

Lower federal courts had blocked the law on the grounds that it violated the legal protections established by the Roe and Casey decisions.

Those rulings together protect abortion before the purpose of fetal viability — around 24 weeks of gestation — and require that laws regulating abortion not pose an “undue burden.”

In oral arguments before the high court in December, the liberal justices expressed grave fears about the results of the court — which had already turn out to be a flashpoint for controversy and was facing all-time low approval from the general public — reversing a long time of precedent on perhaps essentially the most divisive issue in American politics.

“Will this institution survive the stench that this creates in the general public perception that the Structure and its reading are only political acts?” Justice Sonia Sotomayor wondered aloud during those arguments. “I do not see the way it is feasible,” she said.

Within the draft opinion, as reported, Alito wrote, “The Structure makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely —  the Due Process Clause of the Fourteenth Amendment.”

“Roe’s defenders characterize the abortion right as much like the rights recognized in past decisions involving matters corresponding to intimate sexual relations, contraception, and marriage,” Alito wrote, in accordance with Politico.

He continued, in accordance with the news outlet: “But abortion is fundamentally different, as each Roe and Casey acknowledged since it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘unborn human being.'”

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