John Roberts May Dissent From Ruling to Ditch Roe

But landmark decision expected to fall anyway, and about half the states may outlaw abortion
By John Johnson,  Newser Staff
Posted May 3, 2022 6:59 AM CDT
Where Abortion Is Expected to Be Outlawed if Roe Falls
Police move barricades in place as a crowd of people gathers outside the Supreme Court Monday night.   (AP Photo/Alex Brandon)

(Newser) – Politico's Supreme Court bombshell looks to be legit: A leaked draft opinion shows that the court's majority will overturn Roe v. Wade in the coming weeks. All coverage is quick to point out that a draft opinion is not a final opinion, and that things could change before the official ruling is released in June or July. But advocates on both sides of the abortion debate now see the landmark 1973 ruling as doomed. Reaction has been swift:

  • 24 states: If Roe is overturned, it will be up to individual states to decide whether abortions will be allowed within their borders, per the New York Times. The Center for Reproductive Rights projects that 24 states will outlaw abortion after the ruling, some of them almost immediately: Alabama, Arizona, Arkansas, Georgia, Idaho, Indiana, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wisconsin.
  • Or maybe 26: Another group, the Guttmacher Institute, has the total at 26 states: Its list includes Florida, Iowa, Montana, and Wyoming, but does not have North Carolina and Pennsylvania. Many states already have enacted laws putting restrictions on when abortions are allowed. Others have "trigger laws" that go into effect to ban abortion once the Supreme Court rules.
  • The votes: As of now, justices Samuel Alito (author of the draft opinion), Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett are on track to overturn Roe. But CNN reports that Chief Justice John Roberts isn't willing to go that far and would likely dissent from the majority opinion. Roberts favors a smaller-scale move to uphold the Mississippi law in question that bans abortion at 15 weeks, per CNN.

  • Governors in favor: Given the focus on the states, NPR has compiled quick reactions from governors on both sides. In South Dakota, for example: "If this report is true and Roe v. Wade is overturned, I will immediately call for a special session to save lives and guarantee that every unborn child has a right to life in South Dakota," said Republican Gov. Kristi Noem.
  • Governors opposed: "Our state continues to take the steps necessary to protect and expand reproductive rights," said Democratic Connecticut Gov. Ned Lamont. "Tonight [Lt. Gov. Susan Bysiewicz] and I say it louder and with more resolve than ever before, we will do everything in our power to defend abortion rights in Connecticut."
  • Barricades up: Protesters converged on the Supreme Court building soon after the Politico story emerged, and police quickly erected barricades around the building, reports Mediaite. The Daily Beast reports that some minor scuffles among protesters broke out.
  • Nothing final: Here is how SCOTUSblog sums things up: "Initial votes on the outcome of a case can change—and the wording of opinions frequently does—as the justices deliberate and circulate draft opinions." And Axios predicts the leak "will unleash months of intense public and political pressure on the justices to take a narrower tack."
  • The leak: Read the original Politico story, including 10 key passages from the draft opinion written by Alito.
(The focus on the states could become irrelevant if a national law is enacted to outlaw abortion, and that push already is underway.)

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