Chief Justice John G. Roberts Jr. on Tuesday ordered an investigation into the leak of a draft opinion that would overrule the Supreme Court’s landmark Roe v. Wade decision that legalized abortion. He called the unprecedented breach “egregious.”
“To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed,” Chief Justice Roberts said in a statement verifying the authenticity of the draft opinion. “The work of the Court will not be affected in any way.”
The chief justice stressed that the draft document, though authentic, does not represent a final decision by the high court’s nine members. He said he had directed the court’s marshal to investigate the source of the breach.
Court watchers were aghast Monday night when news broke that a draft opinion indicated that the conservative-led high court would overrule the 1973 Roe decision, which gave women a national right to an abortion until fetal viability. Five of the court’s six conservative justices agreed with the change, according to the draft document.
It is the first time a full draft opinion has been leaked in the Supreme Court’s 233-year history, former law clerks said.
In the 98-page draft opinion obtained and published by Politico, Justice Samuel A. Alito Jr. said abortion laws should return to the state legislatures.
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“The Constitution makes no reference to abortion,” Justice Alito wrote. “Roe was egregiously wrong from the start.
“It’s time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” reads the opinion, dated from February.
An official ruling in the case, Dobbs v. Jackson Women’s Health Organization, is expected by the end of June.
Experts on government leaks and the Supreme Court said whoever leaked the draft opinion might not face criminal charges but could lose their legal career.
Steven Aftergood, who studies government secrecy policy at the Federation of American Scientists, said Supreme Court draft opinions are not protected as classified government information like defense secrets, so it is unlikely that the person who leaked the draft opinion will face criminal charges.
“Almost all prosecutions in previous ‘leak’ cases involved unauthorized disclosures of classified information in violation of the Espionage Act statutes. That is obviously not the case here,” Mr. Aftergood told The Washington Times.
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He said it is too soon to know whether the disclosure of the document is a crime. A justice’s release of the opinion to the press would violate Supreme Court protocol but would not run afoul of any criminal statute. If another person, such as a law clerk, gained access to the draft and released it without authorization, that could be considered theft of government property.
“Sometimes lower court opinions include defense or intelligence information that is classified by an executive branch agency. That information is redacted before the opinion is published. Some other court records may include privacy information that is protected from disclosure. But neither of those categories apply to draft court opinions that do not include such information,” Mr. Aftergood said.
It’s unclear at this stage whether the Justice Department will investigate. Mr. Aftergood said it will depend on whether there is credible evidence or suspicion of a crime.
Carrie Severino, a former clerk for Justice Clarence Thomas, said if the draft opinion was printed, the system at the court would be able to trace who printed it, which could reveal who leaked the opinion.
“I think there could be serious repercussions on whether they would be able to practice law after such a breach of trust,” said Ms. Severino. She stressed that she was operating under the assumption that a clerk leaked the document to the press.
Mike Davis, a former clerk to Justice Neil M. Gorsuch, told Fox News that the leaker could be charged with obstruction of justice.
“This is government property,” Mr. Davis said. “You can’t have law clerks or disgruntled employees leaking that to the press.
“If you try to do something illegally or improperly to influence the outcome of a case, and that is exactly what could be happening here, if you are trying to change the votes of justices through illegal means, that is obstruction of justice,” he said.
Mr. Davis and Ms. Severino suggested that the leaker could be disbarred.
U.S. Capitol Police announced Tuesday that they were beefing up security around the Supreme Court as protests erupted overnight and continued throughout the day.
“We are working closely with our partner law enforcement agencies to prepare for any potential demonstrations in the area of the Supreme Court, including adding additional officers in the area,” Capitol Police said.
A fence has been erected around the high court for protection.
“This is a major and direct attack on the court’s judicial independence, and it puts the justices in danger,” Mr. Davis said.
Ms. Severino said the court likely increased security for the justices.
“This just underscores how reckless the decision to leak this was because it obviously does create a threat to the justices as well. It’s just an outrageous thing to do,” she said.
A spokesperson for the high court did not respond to a request for comment.
A spokesperson for the FBI did not comment on whether it is investigating the breach.
The court is weighing a Mississippi ban on abortion at 15 weeks in the case of Dobbs v. Jackson Women’s Health Organization.
Mississippi officials said Roe should be overturned because it’s outdated. The state contends the viability standard set out in Roe is unclear and Mississippi has an interest in banning abortions after 15 weeks to protect the health of women and unborn children.
The legal battle was brought by Jackson Women’s Health Organization, the state’s only abortion clinic, and a doctor who provides abortions. According to court papers, the clinic provides abortions up to 16 weeks of gestation.
They challenged the state’s Gestational Age Act, enacted in 2018. The law bans abortions after 15 weeks, with the exception of a medical emergency or severe abnormality within the fetus.
The abortion providers told the court in their filing that the state’s interest in the women’s health and children doesn’t begin until viability, which is “months” after the 15-week marker set in the law.