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Inside the leaked SCOTUS abortion opinion · Apple News Today

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  Shumita Basu, Narrating: Good morning! It's Tuesday, May 3rd. I'm Shumita Basu. This is "Apple News Today." Each morning, hear about some of the most fascinating stories in the news and how the world's best journalists are covering them.
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  A Supreme Court leak gives us new insight into the court's plans to announce a ruling overturning Roe v. Wade. This reporting comes from "POLITICO," which obtained a draft opinion by Justice Samuel Alito. Four justices sided with him: Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. It is very unusual to see a leaked draft opinion. And this morning, Chief Justice John Roberts confirmed its authenticity, calling it "a significant breach of trust" and "an affront to the court." He's calling for an investigation. In this drafted majority opinion, Alito writes that Roe was, quote, "egregiously wrong from the start" and that it's time to, quote, "return the issue of abortion to the people's elected representatives." Josh Gerstein, senior legal affairs reporter for "POLITICO," broke the story.
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  Basu: Josh, this is obviously explosive news. First, your reaction to that statement from Chief Justice Roberts.
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  Josh Gerstein: Yeah, I mean, we were convinced, Shumita, of the authenticity of the opinion, otherwise we wouldn't have published it. But it's a pretty extraordinary thing to have the Supreme Court not only experience a leak of a draft majority opinion in a very controversial case, but now we have the Chief Justice of the United States confirming that that is in fact an accurate draft opinion from this pending Mississippi abortion case. And obviously, the Chief is very upset about it. I mean, as you said, he's using language like "betrayal of the confidences of the court." He's calling it "a singular and egregious breach of trust," as well as ordering an investigation. So, it's a pretty significant development. I guess this puts an end to any debate about whether that document is real. And the debate will continue about the abortion case itself and whether the court ends up striking down Roe v. Wade.
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  Basu: So, tell us about some of the legal rationale that we see Justice Alito using here to justify why Roe should be overturned.
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  Gerstein: Well, it's really sort of a no-holds-barred, kind of withering assault on the Roe precedent, which came out in 1973. So, almost a half century now on the books. And that decision basically found, explicitly, for the first time that the U.S. federal Constitution guarantees a right to abortion, at least at certain times and under certain circumstances. And that's been the law of the land for the last 49 years. And essentially, Alito really takes a baseball bat to the Roe opinion and says it's very poorly thought out, the history in it isn't accurate, the reasoning doesn't make sense, the constitutional premises of it don't make sense. And he just goes down point by point, essentially dismantling it, not only in, sort of, an intellectual way, but it's pretty contemptuous of, I think, the justices who crafted that opinion. It was written by late Justice Harry Blackmun, but it was obviously signed onto by six other members of the court back in '73. And he's not very kind to that opinion. And you might ask, "Well, why does he have to be so blunt about it?" Well, because there's a general principle that you don't overturn Supreme Court opinions. And you only do that in a really extraordinary case. You mentioned at the outset, the language where Alito calls this Roe decision "egregiously wrong." And when he uses that language, he's doing that on purpose because he's saying, it was so wrong and so misconceived from the outset that the court shouldn't worry about the fact that it tries to keep the law stable over time and should toss it out on the garbage heap of history.
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  Basu: So, one thing that he is saying, as you mentioned, is that the right to abortion is something that is not rooted in the nation's history and traditions. Recently, on this show, we spoke with the journalist Jessica Bruder, who pointed out there are historical arguments that when this country was founded, first trimester abortions were, in fact, legal. So, how can Alito argue that it isn't part of America's history?
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  Gerstein: Well, you know, he assembles a bunch of statutes that he says were on the books at various times during the 18th, 19th century periods, maybe into the beginning of the 20th century. And he says that you can see that in many, if not most, of the states of the Union, there was some effort to prohibit abortions. That this is not a right that has been commonly accepted in large parts of the United States before Roe v. Wade ushered it in. And he notes how many states sort of had outright prohibitions that were basically wiped off the books in '73 when that landmark decision came out.
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  Basu: So, this argument about what's rooted in our nation's history, it seems like it could open up the door to other Supreme Court decisions being overturned. And I'm specifically thinking about gay marriage. Is that the sense that you also get from reading this opinion?
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  Gerstein: Yeah. I mean, one of the issues that Alito tries to contend with here is, you know, sometimes in lawyer arguments, we hear about what we call "a parade of horribles." That, you know, if you take this first step, you're going down a road where a lot of other bad things that people might not agree with will happen even if they agree with you on the first one. And he foresees this argument, which is likely to appear in the dissents, that as far as we know, haven't been written yet. And, you know, he essentially says, "No, abortion is different. Abortion involves potential life," or they use the word "fetal life" sometimes. And that that's different than, say, same sex marriage or the right to contraception or interracial marriage. But there are questions. You know, if you're going to say that because there's no reference to abortion in the Constitution, therefore we're not gonna find any protection for abortion in the Constitution. That type of argumentation very quickly takes you to some strange places where rights, for example, as we said earlier, to contraception that I think many, many, a vast majority of Americans would feel is one of their personal rights. There's no mention of that in the Constitution. Nor does the word "privacy" appear anywhere in there. And unless you find some way to interpret it to cover those things, there's no reason to think that a bunch of other fairly significant precedents couldn't be on the chopping block. The most recent ones would maybe be the most likely to be chopped because Alito's saying if there's not a history of a… of the practice in the country, therefore it's not protected by the Constitution. And I don't think you're gonna find many laws from the 1800s addressing the whole issue of same-sex marriage.
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  Basu: So, Josh, help us understand not only how unusual it is to see a leak like this from the Supreme Court, but also how this leak could potentially impact abortion access even before the official ruling gets passed down, sometime in the next two months.
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  Gerstein: So, the Supreme Court is known as a very secretive institution. I think the late Justice Ruth Bader Ginsburg said something to the effect of, you know, "Those who know won't say, and those who say don't know," when it comes to the Supreme Court. Revealing a draft opinion in a pending case is, as far as we know, unprecedented. There have been reports in Obamacare cases and other cases that the justices were one way and they flipped votes, or some vote tallies leaked out, or what someone thinks is about to be decided, "Here's how it's gonna come out." But to see a draft opinion when you're really probably weeks away from release in its entirety is, as far as we know, something that has not happened before. And it's very hard to say how it will affect the justices. It certainly… They may regard it as some kind of a breach of trust. Whether they're going to think that their colleagues are somehow responsible for it or how it will affect their deliberations, especially in this very contentious abortion case, is hard to say. I mean, you could easily see it causing some of them to rethink their positions if there's a lot of negative blowback to what's anticipated coming from the court. You could also see it stiffening the spines of some of these justices and them saying, "We're not gonna allow ourselves to be pushed around by some leak in the media, and therefore we're gonna go full bore ahead. We wouldn't allow this kind of thing to divert us from the proper path that we think we're on." So, who knows? I don't think you can unring the bell on this, on this particular development. Every one of those justices knows that this opinion was leaked and that they're gonna have to deal with the consequences of it. And comparing how the case comes out to how it might have come out otherwise, after the fact, it might be, basically, impossible at this point.
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  Basu: Josh Gerstein with the scoop for "POLITICO." Josh, thank you for taking some time on a very busy day.
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  Gerstein: Thanks, Shumita. Appreciate it.
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  So, where do abortion rights go from here? If the ruling unfolds, as "POLITICO's" reporting indicates, it would mean the end of federal protection of abortion rights. Instead, it would fall to states to decide whether to provide or restrict access. Several states already have what are called "trigger laws" on the books. It's essentially an abortion ban that takes effect if the court overturns Roe v. Wade. The Guttmacher Institute, which supports abortion rights, says, "26 states are certain or likely to ban abortion" if Roe is overturned. Other states have laws on the books protecting abortion rights.
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  President Biden said today that Roe should not be overturned, but if it is, he wants Congress to put Roe's principles into a bill that he would sign into law.
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  There are a lot of questions, reactions and developments around the abortion case before the Supreme Court. We're covering all of that in the Apple News app, as well as many other stories across the news, including today's primaries. And when you're in the app, keep listening to hear narrated articles from our News+ partners. We'll talk with you again tomorrow.
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