The outlet obtained an initial draft majority opinion written by Justice Samuel Alito that excoriates Roe and Planned Parenthood v. Casey, another major abortion decision that followed in 1992 and established new standards for abortion restrictions.
“We therefore hold that the Constitution does not confer a right to abortion,” the draft reads.
“Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.”
The revelation marks the first time in the court’s modern history that a draft opinion has made it to the public eye while a case was still pending.
The court could change its position before the final opinion is released.
However, if the court does ultimately maintain that states have a constitutional authority to regulate abortion before the viability of the unborn child, abortion would become a punishable crime in Texas.
In 2021, the Texas legislature passed a state law, House Bill (HB) 1280 by Rep. Giovanni Capriglione (R-Keller) and Sen. Angela Paxton (R-McKinney), that would make elective abortions a first degree felony. It also empowers the Texas attorney general to sue for civil damages of at least $100,000 for each violation. Known as the “trigger” ban, this law only takes effect 30 days after the restoration of authority to prohibit abortion to the states. The law describes two possible situations that could restore this authority: the adoption of an amendment to the U.S. Constitution, or a decision by the U.S. Supreme Court that reverses Roe.
The mother herself cannot face penalties for violations of this law.
HB 1280 also notes that Texas never repealed the very abortion ban at the center of Roe. Formerly enacted in Chapter 6 ½ of the Texas Penal Code, the still-extant state law punishes the “designed” administration of any abortion procedure with up to five years in jail.
Additionally, 43 cities in Texas have banned abortion locally, using civil lawsuits as the primary method of enforcement. If the Supreme Court overrules Roe, these cities will also be able to directly punish violators with municipal penalties, according to their ordinances.
Supreme Court terms end in the summer, typically June or July. The leaked opinion deals with Dobbs v. Jackson, which challenges a 15-week ban on abortion passed in Mississippi. The Supreme Court will issue an official opinion by the end of the term.
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