Biden vows to fight on abortion services after U.S. Supreme Court draft ruling leaked

U.S. President Joe Biden said he will fight to preserve access to abortion services, while the chief justice of the Supreme Court ordered an investigation after an unprecedented leak suggested that the top court may overturn the 1973 Roe v. Wade ruling that legalized abortion.

A leaked initial draft majority opinion suggests the court has voted to overturn Roe v. Wade, Politico reported late Monday.

"Roe was egregiously wrong from the start," conservative Justice Samuel Alito wrote in the draft opinion, which is dated Feb. 10, according to Politico, which posted a copy.

Abortion is one of the most divisive issues in U.S. politics and has been for nearly a half century. The news broke a little more than six months before midterm elections that will determine if Democrats hold their razor-thin majorities in the U.S. Congress for the next two years of President Joe Biden's term.

Biden called it a potentially "radical" decision in American jurisprudence, one that could have ramifications for other privacy rights involving contraception and gay rights.

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"It goes far beyond, in my view, it goes far beyond the concern of whether there's the right to choose," he told reporters before departing for a visit to Alabama.

In an earlier statement, the White House said it "will be ready when any ruling is issued."

"At the federal level, we will need more pro-choice senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law," the statement attributed to Biden said.

To reporters, Biden said he wasn't prepared now to make a judgment on whether the Senate filibuster on legislation intended to protect abortion rights — which requires a 60 per cent threshold for votes instead of a simple majority — should be overturned.

Chief Justice John Roberts confirmed the draft as authentic in a statement, calling the leak a "singular and egregious breach." Roberts said he had ordered the Marshal of the Supreme Court to initiate an investigation.

"To the extent this betrayal of the confidences of the court was intended to undermine the integrity of our operations, it will not succeed. The work of the court will not be affected in any way," Roberts said.

Biden said he had been informed the draft was authentic but that he had been informed that, "it doesn't represent who's going to vote for it yet."

"I hope there are not enough votes for it."

WATCH | Draft opinion leaked:

Vice-President Kamala Harris, the first woman to serve in the role, said opponents of the Roe v. Wade ruling were seeking to take away women's rights to make decisions about their own bodies.

"The rights of all Americans are at risk," she said. "If the right to privacy is weakened, every person could face a future in which the government can potentially interfere in the personal decisions you make about your life."

Democrats warn of consequences

Within hours of the news, anti-abortion activists chanting "hey, hey, ho, ho, Roe v. Wade has got to go" and abortion rights supporters shouting "abortion is health care" were facing off outside the Supreme Court.

Protester Annie McDonnell, 19, a student at George Washington University, said, "The first line in the draft is that this is a moral issue. If it's a moral issue, you shouldn't be depriving us of our choice."

"Justices get out of my vagina," said one protest sign.

The unprecedented leak sent shock waves through Congress and the country.

"The Republican assault on Roe v. Wade is a manifestation of their decades-long disrespect of women," said House Speaker Nancy Pelosi in a statement.

"If … the Court chooses to terminate Roe, Democrats will not relent in fighting back against the dire threat posed to women's health, safety and wellbeing." 

Many Republican members of Congress seemed more engaged by the leak.

Senate Minority Leader Mitch McConnell called it a "stunning breach" in a statement.

"The Chief Justice must get to the bottom of it and the Department of Justice must pursue criminal charges if applicable," he said.

Missouri Sen. Josh Hawley argued that if a law clerk leaked it, they should be disbarred. Hawley added that, if true, the leaked opinion was "voluminously researched, tightly argued and morally powerful."

But Republicans Susan Collins and Lisa Murkowski were focused on women's access, expressing dismay at the potential turn.

Collins, who supports abortion rights but was a pivotal GOP vote for the confirmations of conservative Justices Neil Gorsuch and Brett Kavanaugh, said if the draft reflects the final opinion of the court, "it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office."

"My confidence in the court has been rocked," Murkowski told reporters.

Democratic Senate Majority Leader Chuck Schumer said he would put forward a bill that would codify abortion rights into law, aiming for a vote next week. Such a vote is unlikely to reach 60 votes, but would force some Republicans into having to defend their no votes on the midterm election campaign trial.

A previous vote failed to pass in the Senate in March.

Several states have 'trigger' laws

The draft decision appeared to be based on an oral argument in December on Mississippi's bid to revive its ban on abortion starting at 15 weeks of pregnancy, a law blocked by lower courts.

After an initial vote among the justices following an oral argument, one is assigned the majority opinion and writes a draft. It is then circulated among the justices.

At times, in between the initial vote and the ruling being released, the vote alignment can change. 

An official Mississippi case opinion from the nine-member court, which has six justices appointed by Republicans, is expected before the end of June.

Numerous Republican-led states have passed various abortion restrictions in recent years, as well as so-called trigger laws, which would kick in and automatically ban abortions if the Supreme Court provides the legal foundation.

In Oklahoma, Republican Gov. Kevin Stitt signed a Texas-style abortion ban on Tuesday that prohibits abortions after about six weeks of pregnancy.

If Roe is overturned, abortion is likely to remain legal in liberal states. More than a dozen states have laws protecting abortion rights.

California has previously said it would look to find more ways to accommodate out-of-state individuals seeking an abortion if the law is overturned.

"We can't trust SCOTUS to protect the right to abortion, so we'll do it ourselves," California Gov. Gavin Newsom said on Twitter, referring to the Supreme Court.

Would run counter to global trend

Based on Alito's opinion, the court would find that the Roe v. Wade decision that allowed abortions performed before a fetus would be viable outside the womb — between 24 and 28 weeks of pregnancy — was wrongly decided because the U.S. Constitution makes no specific mention of abortion rights.

"Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each state from regulating or prohibiting abortion," Alito said, according to the leaked document.

The Roe v. Wade decision recognized that the right to personal privacy under the U.S. Constitution protects a woman's ability to terminate her pregnancy.

The ruling helped mobilize Christian leaders, leading to the formation of politically active organizations such as the Family Research Council and Focus on the Family.

The Guttmacher Institute, a pro-choice research group, has estimated that about half of all U.S. states would ban abortion if they had the legal backing. In 2019, the group said abortions were at their lowest level since Roe v. Wade, due to a declining birth rate, expanded insurance coverage for contraception and the increased use of medications that can terminate pregnancies.

A 2021 poll by the Pew Research Center found that 59 per cent of U.S. adults believed it should be legal in all or most cases, while 39 per cent thought it should be illegal in most or all cases.

Should the top court offer an opinion consistent with the Politico report, the U.S. would be bucking the global trend. The Council of Foreign Relations in a report in late 2019 tracked nearly 30 instances of countries this century that have expanded access to abortion services, with just the U.S. and a handful of others tightening restrictions.