Biden vows to fight for abortion access 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.

Protesters gather over draft opinion that suggests court poised to overturn ruling that legalized abortion

Protesters demonstrate near a federal court in Richmond, Va., on Tuesday. A leaked Supreme Court draft opinion that would throw out the landmark Roe v. Wade abortion rights ruling had Americans grappling with what might come next. (Steve Helber/The Associated Press)

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.

The leak prompted protests to break out in the country's capital and other cities on Tuesday.

The 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 Biden's term.

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

"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 while he had been informed the draft was authentic, he had also 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 | Biden laments possible Roe v. Wade overturn:

Biden says overturning Roe v. Wade would be 'radical'

1 year ago
Duration 2:00
U.S. President Joe Biden says a whole range of rights would be thrown into question if the Supreme Court acts on a new draft opinion to overturn the 1973 Roe v. Wade ruling that legalized abortion.

Vice-President Kamala Harris, the first woman to serve in the role, said that the potential Supreme Court decision overturning Roe v. Wade represents an attack on women and lashed out at Republicans for "weaponizing" the issue.

"If the court overturns Roe v. Wade, it will be a direct assault on freedom," Harris told attendees at a gala hosted by Emily's List, an organization which works to get abortion-rights Democrats elected to office. 

Her appearance at the gala was planned before the leak of the ruling, but took on new significance following the leak. Harris said the last 24 hours have made it clear where Democrats and Republicans stand.

"Some Republican leaders are trying to weaponize the use of the law against women. How dare they. How dare they tell a woman what she can and cannot do with her own body. How dare they try to stop her from determining her own future. How dare they try to deny women their rights and their freedoms," she said.

Democrats warn of consequences

Protests over the leaked draft opinion sent people into the streets around the nation. 

Around 1,000 people gathered in front of the court Tuesday, the vast majority calling for continued federal protection for abortion rights. 

"I can't believe how many women I have met that did this in their lifetime already," said Jessica Fendryk, 39, of Maryland. "And now we have to be fighting for them all over again."

One demonstrator carried a sign declaring, "If men could get pregnant, abortions would be available at every ATM."

At a rally in Manhattan, New York state Attorney General Letitia James announced that nearly two decades ago, she "walked proudly into Planned Parenthood" and had an abortion.

In Texas, several hundred people rallied in Austin on Tuesday, marching down a main avenue downtown.

Small rallies were held in Los Angeles, San Francisco and other California cities.

In L.A., about 30 people gathered outside a federal courthouse to chant: "No more shame, no more silence. Forced motherhood is fascist violence."

Ellen Campbell said she knew four women who had abortions, including one friend who had a possibly life-threatening ectopic pregnancy, where the fetus developed outside the uterus. 

"She was the only person that should have been making that decision for herself," Campbell said. "It was her life and her body."

New York Attorney General Letitia James speaks at a rally in support of abortion rights in New York on Tuesday. James disclosed that she had an abortion nearly two decades ago as a newly elected city council member. (Jason DeCrow/The Associated Press)

The unprecedented leak also sent shock waves through Congress.

"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 well-being." 

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.

WATCH | Democratic Rep. Judy Chu on why filibuster must end: 

Democratic lawmaker urges Biden to end filibuster to pass abortion rights law

1 year ago
Duration 6:57
Democratic Representative Judy Chu tells Power & Politics U.S. President Joe Biden must end the filibuster to pass a law that would enshrine Roe v. Wade.

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.

Protesters sit outside the U.S. Supreme Court in Washington, D.C., on Tuesday after the leak of a draft majority opinion written by Justice Samuel Alito preparing for a majority of the court to overturn the landmark Roe v. Wade abortion rights decision later this year. (Evelyn Hockstein/Reuters)

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.

WATCH | Swift reaction to leaked draft opinion

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.

Derenda Hancock, co-organizer of the Pinkhouse Defenders, is shown on Tuesday. The group are volunteers who shield and escort patients entering the last remaining clinic to perform abortions in Mississippi, where the case before the Supreme Court originated. (Rogelio V. Solis/The Associated Press)

With files from Reuters and The Associated Press