The Supreme Court on Tuesday confirmed the authenticity of a leaked draft ruling overturning the Roe v. Wade decision establishing a constitutional right to abortion but stressed that it was not final even as the disclosure triggered a political earthquake.
Expressing indignation over the extraordinary leak, the likes of which has not been seen in modern times, Chief Justice John Roberts called it a "betrayal of the confidences of the court" and ordered an investigation.
"This was a singular and egregious breach of that trust that is an affront to the court and the community of public servants who work here," he said in a statement.
While protesters gathered outside the court headquarters, chanting loudly enough for members of Congress to hear as they entered the Capitol across the street, President Joe Biden and other Democrats called on voters to elect more abortion-rights supporters so that lawmakers could codify the principles of Roe into federal law, while Republicans accused liberals of orchestrating the leak to intimidate the justices.
Speaking with reporters, Biden warned that the potential ruling could undermine the right to privacy beyond just abortion, endangering a series of rights that Americans have come to expect, including same-sex marriage.
"If this decision holds, it's really quite a radical decision," he said. "It basically says all the decisions related to your private life, who you marry, whether or not you decide to conceive a child or not, whether or not you can have an abortion, a range of other decisions," all of those could now be in question.
In a brief statement, Vice President Kamala Harris said Republican legislators across the nation attacking Roe "want to punish women and take away their rights to make decisions about their own bodies."
"This is the time to fight for women and for our country with everything we have," Harris said.
Roe "at its root protects the fundamental right to privacy," she said, adding: "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."
The draft opinion by Justice Samuel Alito was circulated among the justices in February and leaked to Politico, which published it Monday night and reported that it had the support of at least five of the nine members of the court.
The court did not elaborate on how the draft ruling may have been adjusted in the current case, which stems from a challenge to a Mississippi law, but emphasized that no one should assume it will necessarily reflect the final decision, expected sometime in June or early July.
If the court follows through with some version of Alito's opinion, the constitutional right to abortion first established by the court in 1973 will be negated. It then will be left to the states to decide whether the procedure should be legal in their jurisdictions or not, unless Congress steps in and sets a single national policy again.
The unprecedented disclosure of a draft opinion in such a major case threw the Supreme Court into turmoil as it faced a head-spinning breach of its traditional secrecy.
Polls have shown that most Americans support at least some form of abortion rights. A survey by CNN in January found that 30% of Americans wanted the court to completely overturn Roe, while 69% were opposed.
LEGISLATIVE PUSH
Senate Democrats vowed Tuesday to vote on legislation to protect abortion access for millions of Americans, but without broader support from Republicans, Congress is essentially powerless to prevent the unraveling of the landmark Roe v. Wade ruling.
"It is our intention for the Senate to hold a vote on legislation to codify the right to an abortion in law," Senate Majority Leader Charles Schumer, D-N.Y., said Tuesday afternoon at a news conference with fellow Senate Democrat. He added that "a vote on this legislation is no longer an abstract exercise. This is as urgent and real as it gets."
"We will vote to protect a woman's right to choose, and every American is going to see which side every senator stands on," Schumer said.
Congress, however, can do little to stop the court from undoing Roe v. Wade unless more Republicans join Democrats in voting to protect abortion access, which is almost certainly unlikely.
Schumer said the Senate would vote next week on emerging legislation. Some Democrats, however, indicated they prefer to fight over the issue on the campaign trail this fall, rather than in Congress. The House is away this week.
Echoing the concerns raised by other Democrats and abortion rights advocates, Schumer said news of the draft decision is a signal that the Supreme Court is ready to overturn other precedents on issues ranging from contraception to same-sex marriage.
"This is a dark and disturbing day for America," he said.
Typically reveling in his role as the architect of the conservative Supreme Court majority, Senate Minority Leader Mitch McConnell demurred Tuesday when asked about the draft ruling.
Instead, McConnell, R-Ky., said the focus should be on getting to the bottom of the unusual leak of the document from the typically quiet court.
"I think the story today is the effort by someone on the inside," McConnell said of the leak.
Schumer shot back that Republicans are afraid to own what they have brought because "they are on the wrong side of history."
Passing an abortion access bill through the Senate remains a political long shot, especially under the rapid time line that would be needed before the Supreme Court issues its final decisions in June.
Schumer stopped short of promising to change Senate filibuster rules to allow Democrats to overcome Republican obstruction and pass legislation that would salvage the landmark abortion law on their own, as some party advocates are demanding.
The Democratic leader does not have the votes within the Democrats' razor-thin 50-vote majority to muscle through a rules change in the Senate that would allow Democrats to push past what is typically a 60-vote threshold on expansive bills.
HAUNTED BY VOTES
Republican senators who helped turn the court into a solid 6-3 conservative majority now face deep scrutiny.
And two Republican senators who publicly support abortion access, Lisa Murkowski of Alaska and Susan Collins of Maine, but have voted to confirm conservative justices vented their frustrations at the court's draft document and pushed their own bill to turn the Roe v. Wade ruling into law.
Murkowski told reporters that if the leaked draft opinion is ultimately the final decision, it "rocks my confidence in the court right now."
The senator from Alaska said that for now, "Roe is still the law of the land" but that she maintains her support for codifying Roe v. Wade in law.
"I thought it made sense then, and I think it makes perhaps more sense now," Murkowski said.
Murkowski, who voted to confirm two of President Donald Trump's three nominees to the Supreme Court, was asked whether she felt lied to or misled by the candidates who said that access to abortion was settled law.
She wouldn't directly comment, instead repeating that her "confidence in the court has been rocked."
In 2017 and 2018, Collins defended her support for then-Supreme Court nominees Neil Gorsuch and Brett Kavanaugh, in part, by pointing to their avowed respect for precedent on abortion. Earlier Tuesday, Collins, who supports abortion rights, issued a statement expressing surprise that both justices would join a draft opinion that would overturn Roe v. Wade.
Collins said if the leaked draft opinion on abortion becomes the ruling 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." She did not vote for another Trump-nominated justice, Amy Coney Barrett, because confirmation came so close to the 2020 election. Murkowski, who is up for reelection this year, did not vote for Kavanaugh after his explosive confirmation hearings over allegations he sexually assaulted a woman acquaintance during high school. She did give her support to Gorsuch and Barrett.
Sen. Lindsey Graham, R-S.C., told reporters that decisions on abortion laws should be left to the states, in agreement with the leaked draft.
"The Roe v. Wade decision divided America. It didn't bring us together," Graham said. "[It's one of] the most controversial decisions in the history of the court. I always thought it was a constitutional power grab. So [if the draft decision] does hold and it is in fact overturned, then it goes back to the states and let's see how that proceeds."
Graham said he does "not see" 60 votes in the Senate to ban abortion federally.
"Both parties will have to work out sort of what they think the solution would be to the overturn of Roe v. Wade," he said. "Changing the filibuster at the Senate doesn't help. That would be a destructive act for the Senate. Don't compound the problem. The integrity of the court's been compromised. Why would you want to change the function of the Senate in response to that and make it the House?"
Sen. Josh Hawley, R-Mo., said the leaked draft from Justice Samuel Alito "is a really good opinion."
Hawley said he looked forward to the campaign debate. "The people will really get to weigh in," he said.
LEAK CONSEQUENCES
Other Republican senators slammed the unusual leak of the high-profile draft opinion as an attempt to bully the court, even as they celebrated its contents.
Sen. Elizabeth Warren, D-Mass., countered McConnell and the other Republicans who want to go after the leak.
"What should be investigated and prosecuted is the fact that people who were nominated to the Supreme Court stood up and said they believed in the rule of law and precedent, and then at first opportunity, changed direction by 180 degrees and are going for a full repeal of Roe," said Warren, a former Harvard law professor.
Trump was able to nominate and have the Senate confirm three justices, engineering a wholesale revamping of the high court, now with a solid conservative majority.
McConnell then marshalled into place a Senate rules change to enable Republicans to bypass a Democratic filibuster and approve Supreme Court nominees on a simple 51-vote threshold -- going further than Democrats had done on their own earlier rules change to allow majority confirmation of lower-level posts.
Calls have begun for the Justice Department to identify and criminally charge the draft's leaker. But what legal punishment could actually ensue? Probably none, experts say.
While Roberts is directing the court's marshal to launch an investigation into how the draft became public, legal analysts say that the leaker or leakers will almost certainly not face any criminal exposure, provided they had legitimate access to the document.
The law that could theoretically be at play here is 18 U.S.C. 641, which prohibits the theft or receipt of stolen government information and documents -- Supreme Court documents included. If someone with legitimate access to the draft leaked it for public awareness, the Justice Department would not treat the leak as a crime.
Information for this article was contributed by Peter Baker of The New York Times, by John Wagner, Mariana Alfaro and staff members of The Washington Post and by Lisa Mascaro, Padmananda Rama, Rick Gentilo, Farnoush Amiri, Kevin Freking, Alan Fram and Mary Clare Jalonick of The Associated Press.