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‘Like the Pentagon Papers’: Legal experts shocked at Supreme Court leak on abortion draft ruling

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'Like the Pentagon Papers': Legal experts shocked at Supreme Court leak

An abortion rights activist stands outside the U.S. Supreme Court in Washington, D.C., on Tuesday. Photo by Bonnie Cash/UPI | License Photo

May 3 (UPI) — The report of a draft opinion on abortion from the U.S. Supreme Court late Monday — which would overturn the landmark Roe vs. Wade ruling — was a seismic event on multiple fronts, but perhaps none more striking than the leak itself.

Most legal experts so far have expressed a high degree of surprise and bewilderment about the leak of a draft of the Supreme Court decision — which appears to be unprecedented.

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Equally as stunning, some say, is that an unfinished draft would be made public, which shatters the private deliberations of the nation’s highest court.

Already one of the most private institutions in the judicial branch, experts note that the Supreme Court has never been very open with the way it conducts its business and the back-room activities that shape its rulings.

“The fact that it leaked is, to me, the most surprising thing,” I. Glenn Cohen, a professor at Harvard Law School, told Business Insider. “Very unusual.”

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The draft ruling, written by conservative justice Samuel Alito, showed the court’s five conservative justices voting to strike down the landmark abortion ruling almost a half-century ago — which made the procedure legal in all 50 states. The ruling is based on a Mississippi case the court heard in December challenging the 1973 decision and is the culmination of years’ worth of legislative efforts in several Republican-leaning states to overturn the law.

Mark Kende, a law professor at Drake University, called the leak “highly disturbing” and “unprecedented,” according to Business Insider.

Abortion rights activists embrace outside the U.S. Supreme Court in Washington, D.C., on Tuesday after the leak of a draft opinion that aims to strike down the court’s landmark 1973 ruling in Roe vs. Wade, which legalized abortion nationwide. Photo by Bonnie Cash/UPI

Neal Katyal, former U.S. acting solicitor general who’s argued before the Supreme Court, said in a tweet that the leak of the draft is the “equivalent of the Pentagon Papers leak, but at the Supreme Court.”

“I’m pretty sure there has never ever been such a leak. And certainly not in the years I’ve been following the Supreme Court,” he wrote.

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Monday night’s report set off a wave of alarm nationwide among supporters of the 1973 ruling and abortion rights advocates, including President Joe Biden, who said Tuesday that “basic fairness” in the law demands that Roe vs. Wade not be overturned.

If the court does strike down Roe vs. Wade, that means each state will be responsible for determining the legal status of abortions. Some states like Texas and Mississippi have acted to severely restrict the procedure, while more progressive states like California and New York have explicit laws protecting the practice.

Polls have consistently shown for years that a majority of respondents support Roe vs. Wade and a woman’s right to an abortion, which is part of what makes the court’s signal so frustrating among advocates.

In 2020, Gallup reported that 80% of respondents said they favor some form of legalized abortion. A year earlier, a Public Religion Research Institute survey showed that no state had more than a 25% share of respondents who favored a total abortion ban. A Pew Research Center poll last year showed that almost 60% of respondents said that abortion should be legal.

In the past, there have been rare occasions when information about a Supreme Court decision may have leaked — including the court’s 2012 opinion that upheld part of the Affordable Care Act and in 1972 when the court was deliberating Roe vs. Wade, Politico observed. But there’s been nothing in modern history equivalent with the release of an entire draft ruling, like that which happened Monday.

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Further, it’s not yet known exactly where Monday’s draft opinion came from. But there are some theories.

Slate summarized four possibilities about who may have leaked the draft — a progressive law clerk in the high court, one of the court’s conservative justices, one of the court’s progressive justices or Chief Justice John Roberts.

The motive for the progressive sources is clear, but Slate noted that it would also make sense for a conservative justice to leak the draft ruling to solidify support for a possible swing-vote.

The Roberts theory, Slate noted, is based on a CNN report that indicated that the chief justice does not favor a total abortion ban. Therefore, leaking the draft may be an effort to get the others to step away from a total ban.

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