WASHINGTON — President Joe Biden said a draft Supreme Court opinion that leaked Monday night and appeared to reveal that a majority of five conservative justices intend to strike down Roe vs. Wade would mark a “fundamental shift” in U.S. law and could throw a “whole range of rights” related to privacy into question.
“If this decision holds, it’s really quite a radical decision,” he told reporters before a scheduled trip to Alabama.
The president’s comments came after Chief Justice John G. Roberts Jr. confirmed the authenticity of the draft opinion that would end nearly 50 years of federally protected abortion rights if it is adopted by at least five justices. Roberts said the ruling was not yet final; the decision is expected to be made public in the next two months. In a statement, the chief justice called the leak a “singular and egregious betrayal of trust,” and said he has asked the Marshal of the Supreme Court to investigate the matter.
While Biden, Democrats and liberals have sharply criticized the substance of the draft opinion by Justice Samuel A. Alito Jr., which was published Monday by Politico, Republicans have mainly focused their ire on the leaker.
“This lawless action should be investigated and punished as fully as possible,” Senate Majority Leader Mitch McConnell, R-Ky., said in a statement that echoed comments by other GOP lawmakers. “The Chief Justice must get to the bottom of it and the Department of Justice must pursue criminal charges if applicable.”
Given that the court is controlled by its six conservatives, the prospect of rescinding abortion rights and returning the decision to the states would not come as a surprise. But such a ruling would deliver a cataclysmic shock to the American body politic and potentially spark a political backlash, further civil unrest and a deeper reordering of the lives of millions.
In the short term, Biden and Democrats intend to seize on the apparent overturning of Roe to galvanize voters ahead of the November midterm elections. They are desperate to motivate a base that has been disappointed by the president’s inability to get much of his agenda through a narrowly divided Congress, and to appeal to swing voters given that a solid majority of Americans support maintaining abortion rights.
“If the court does overturn Roe, it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose. And it will fall on voters to elect pro-choice officials this November,” Biden said in a statement, noting that Democrats don’t currently have the ability to codify abortion rights. “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.”
But Biden’s ability to rally his party on the issue ahead of the midterms is no sure thing. His restrained response to the possible overturning of Roe did not match the emotion of many women and reproductive rights activists. And his history on the issue of abortion is complicated. Though a devout Catholic, Biden has long supported abortion rights. But his reticence to weigh in over the last year as several states have restricted abortion rights — to say nothing of his reluctance to use the word “abortion” — has frustrated activists.
Democrats, who have been far more eager than Republicans to weigh in on the draft opinion so far, are certain to emphasize the importance of retaining their Senate majority to have the ability to confirm future Biden Supreme Court nominees should a second vacancy arise before the end of his term. They’ll also underscore the importance of governorships, given that protecting abortion would fall to the states.
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