Supreme Court Chief Justice John G. Roberts Jr. on Tuesday called for an investigation into the leak of a draft opinion that would overrule the landmark Roe v. Wade decision that legalized abortion, calling 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, adding that he has directed the court’s marshal to probe the source of the breach.
Court watchers were aghast Monday night when news broke that a draft opinion indicates 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, according to former law clerks.
In the 98-page draft opinion obtained and published by Poltiico, Justice Samuel A. Alito Jr. said abortion should return to the state legislatures.
“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 say that whoever leaked a draft opinion might not face criminal charges but could lose their legal career as a result of the breach.
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. Therefore, it is unlikely that the individual who leaked the draft opinion would 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.
He said it is too soon to know whether a crime may have been committed by disclosing the document. If one of the justices released the opinion to the press, it would violate Supreme Court protocol but would not run afoul of any criminal statute. But if another person — like a law clerk — gained access to the draft and released it without authorization, that could be considered a 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 if the Justice Department would investigate, he said, adding that it would 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 did so and be a possible way to 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,” Ms. Severino said, stressing that she is operating under the assumption a clerk leaked the document to the press.
But Mike Davis, a former clerk to Justice Neil M. Gorsuch, told Fox News 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 added.
Both Mr. Davis and Ms. Severino suggested the leaker could be disbarred.
Meanwhile, the U.S. Capitol Police announced Tuesday they are 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,” the 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,” said Mr. Davis.
Ms. Severino said the court has likely already increased security for its 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 argue that 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 women’s health and that of 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 unless there is 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 woman’s health and children doesn’t begin until viability, which occurs “months” after the 15-week marker set in the law.
