The Hill’s Morning Report — Leak: Justices poised to overturn Roe v. Wade

A Supreme Court majority privately voted late last year to overturn Roe v. Wade, the landmark 1973 ruling that said the Constitution protects a pregnant woman’s right to choose abortion without excessive government restriction, according to a draft opinion written by conservative Justice Samuel Alito and published by Politico.

The Democratic-appointed justices on the court, Stephen Breyer, who will retire this summer, Elena Kagan and Sonia Sotomayor, are working on one or more dissents, Politico reported, noting that Chief Justice John Roberts’ ultimate vote is unclear. The justices voting with Alito: Clarence Thomas, Brett Kavanagh, Neil Gorsuch and Amy Coney Barrett.

According to CNN sources, Roberts did not want to overturn Roe and would likely side with Breyer, Kagan and Sotomayor. Instead, he is willing to uphold the Mississippi law banning abortions after 15 weeks of pregnancy, per the report.

The unprecedented leak of a draft opinion, in particular a ruling that would fundamentally alter reproductive rights, states’ authority and American politics, startled Supreme Court lawyers, court experts, members of Congress and journalists. Experienced court watchers described the draft opinion, which does not reflect the comments of Alito’s fellow justices, as appearing to be legitimate.

“It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin,” SCOTUSblog tweeted.

“The Court has no comment,” Supreme Court public information officer Patricia McCabe told The Washington Post. Protesters representing various opinions swarmed the court before midnight (Politico). Abortions rights activists plan protests across the United States today (The New York Times).

Speaker Nancy Pelosi (D-Calif.) and Senate Majority Leader Charles Schumer (D-N.Y.), in a joint statement, said a majority vote to overturn Roe “would go down as an abomination,” adding that it would be “one of the worst and most damaging decisions in modern history.”

​​“Several of these conservative Justices, who are in no way accountable to the American people, have lied to the U.S. Senate, ripped up the Constitution and defiled both precedent and the Supreme Court’s reputation,” the Democratic leaders wrote.

Politico: 10 key passages from Alito’s draft opinion, which would overturn Roe v. Wade.

Senate Judiciary Committee member Amy Klobuchar (D-Minn.) tweeted Monday night that the published Alito opinion pointed to a role for Congress. “It is a fundamental right for a woman to make her own health decisions. We must protect the right to choose and codify Roe v Wade into law,” she said. 

As The Hill’s Jordain Carney notes, the Senate voted 46-48 earlier this year to codify Roe. Sen. Joe Manchin (D-W.Va.) was the lone Democrat to cross the aisle in opposition.

Overturning Roe would strike down what many abortion rights defenders, including Supreme Court justices appointed by presidents of both political parties, have long described as settled law. It would limit access to abortions across much of the country, including parts of the South and Midwest. In at least 13 states, abortion would immediately become illegal. As Alito’s opinion notes, the ruling would allow each state to set its own laws and restrictions. One of those restrictions deals with medication abortion, accompanied by criminal penalties.

“The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion,” the Alito draft states. “Roe and [1992’s Planned Parenthood v.] Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”

Planned Parenthood, in a statement late Monday, said, “The leaked opinion is horrifying and unprecedented, and it confirms our worst fears.” 

A majority of Americans oppose overturning the 49-year-old ruling, according to recent surveys. A CNN poll in January found that 69 percent of respondents were against doing away with Roe while 30 percent were in favor.

The news that the court majority would overturn Roe, despite months if not years of public speculation and anticipation, immediately upended this year’s midterm election terrain. The court’s decision will almost certainly mobilize supporters in both parties ahead of the November contests. Among the first to react to the news were Senate Democratic candidates; many echoed Klobuchar’s call to abolish the Senate 60-vote filibuster threshold as a way to legislatively affirm Roe while a Democratic president is in the White House (Axios).

On the GOP side, lawmakers were incensed with the disclosure of the high court’s draft. Sen. Tom Cotton (R-Ark.) said that the court and the Justice Department “must get to the bottom of this leak immediately using every investigative tool necessary” (The Hill).

Related Articles

■ Kathryn Kolbert and Julie F. Kay, The New York Times: Roe is as good as gone. It’s time for a new strategy.

■ Politico: Democrats hope draft abortion opinion will jolt midterm elections.

LEADING THE DAY

POLITICS

One of the first major tests of former President Trump’s grip on the Republican Party will be on display tonight in Ohio as he looks to power J.D. Vance across the finish line to snag the GOP’s Senate nomination.

Vance, the author of “Hillbilly Elegy,” struggled for months to gain traction with the Ohio GOP electorate despite being buoyed by PayPal founder Peter Thiel. Enter Trump, who officially endorsed Vance’s efforts in mid-April, leading to nearly a doubling of his support in recent surveys.

Former Ohio Treasurer Josh Mandel trails Vance, currently the leader, by 3.5 points, according to the latest RealClearPolitics average of polls.

“It’s very simple. … Donald Trump resurrected J.D. Vance from the dead,” a GOP strategist with ties to Ohio told the Morning Report. 

One Republican operative in the state said if Vance triumphs, he’ll know who to thank. 

“If he wins Vance only owes two people: Peter Thiel and Donald Trump,” the operative said, adding that the late infusion of cash from Thiel to a pro-Vance super PAC has made a big difference down the stretch to combat pro-Mandel ads run by the Club for Growth. 

Of the $11 million spent in the final week, nearly half of all spending ($5.2 million) was by Mandel or groups supporting him, compared to $3 million by Vance and his supporters. More than $63 million has been spent on the primary overall. 

■ Alexander Bolton, The Hill: Senate GOP privately roots against Trump in Ohio primary.

■ NBC News: Vance works to lock up Ohio GOP Senate race as Trump-averse candidate rises.

© Associated Press / Tony Dejak | Cleveland, 2020.

However, political watchers are also keeping an eye on state Sen. Matt Dolan (R), who is on helium watch after a late boost in the polls has given him a shot to eke out a win today. 

Dolan, whose family owns the Cleveland Guardians, is the only one in the race not to seek Trump’s endorsement but has seen his stock grow as Vance, Mandel and others in the race have attacked one another, giving Dolan a clear lane ahead of Election Day. The GOP strategist with Ohio ties likened Dolan, who has spent more than $10 million himself on the race, to businessman Mike Gibbons, who briefly became the leader in the race in February due to a one-two punch of millions in ads and the lack of attacks from rivals.

“Nobody is attacking him,” the Ohio GOP operative said of Dolan, adding that they give him a 35 percent shot to win tonight (compared to a 40 percent chance for Vance and 25 percent for Mandel). “It’s a three-way race.”

The only question is whether Dolan has run out of real estate to land the plane and win. As a third GOP operative surmised, it “seems like a stretch to think he can pull it out.”

■ The Hill: Five things to watch in the Ohio primaries.

■ Niall Stanage: The Memo: Ohio primary puts Trump’s power to the test.

■ The Wall Street Journal: Trump’s influence faces test in GOP primaries in May. 

■ The Hill: Vance waves off Trump fumbling his name: “I’m not worried about it at all.” 

The Senate race is not the only race worth keeping an eye on heading into tonight. Rep. Tim Ryan (D-Ohio) and Ohio Gov. Mike DeWine (R) seem likely to take home the Senate Democratic nomination and the GOP gubernatorial nod, respectively. However, there is intrigue at the House level. Rep. Shontel Brown (D-Ohio), who won the special election last year to replace Housing and Urban Development Secretary Marcia Fudge, is facing a rematch against Nina Turner, a leading progressive voice who is backed by Sen. Bernie Sanders (I-Vt.)….