A Supreme Court majority in favor of overturning Roe v. Wade was reportedly still in agreement long after a draft of the majority opinion was written in February.
The draft, which was leaked to the public last week, does not represent the final decision of the Supreme Court in the case of Dobbs v. Jackson Women’s Health. Justices are still able to suggest changes to the majority opinion or switch their votes altogether until the court publishes its decision in the case.
As recently as two weeks ago, however, the reported majority in favor of striking down Roe was still together, sources told The Washington Post. “[T]hree conservatives close to the court” told WaPo that “the majority of five justices to strike Roe remains intact,” a question that has stirred those on both sides of the debate that has erupted around the future of abortion law in the U.S. in the wake of the leaked draft.
Chief Justice John Roberts is not siding with the majority, telling his colleagues in December that he planned to write an opinion upholding both Mississippi’s restrictions on abortion, in question in Dobbs, as well as Roe to the extent possible. The majority of the court disagreed with the chief justice and were “more interested in an opinion that overturned the precedents,” WaPo reported, citing a source “close to the most conservative members of the court.”
The leak of the draft decision on May 2 sparked outcry across the political spectrum. Conservatives generally decried the leak of the document, unprecedented in recent history and a significant breach of trust among the nine justices of the high court. Leftists rallied to protest the contents of the draft and claimed that the end of Roe could spell the end of abortion access in the U.S. Notably, ending Roe would revert the question of legal access to abortion back to the states, where laws would vary widely.
Over the weekend, protesters demanding the Supreme Court uphold Roe demonstrated outside of the private residences of Justice Brett Kavanaugh and Roberts. Earlier in the week, the pro-abortion group Ruth Sent Us doxed the five conservative members of the Supreme Court, posting their streets on online and calling for protests.
Last week, former Attorney General Bill Barr said that the Roberts may need to appoint a special counsel to uncover who leaked the draft of the decision. The leaker, Barr said, could be charged with obstruction of justice.
“I think the chief would have had the option, and perhaps he still will, to appoint a special counsel. Not in the classical criminal sense, but the court can appoint a counsel and he could bring in a former U.S. attorney or someone with a criminal law background. And I’m sure he would get the support he needed from the FBI or any other law enforcement agency,” Barr said.