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Harvard Law professor says leaked SCOTUS draft opinion on Roe v. Wade looks legitimate, but opinions can change

A crowd of people gathered outside the Supreme Court early Tuesday in Washington. In an initial draft majority opinion obtained by Politico, Supreme Court Justice Samuel Alito allegedly wrote that the cases Roe v. Wade and Planned Parenthood of Southeastern v. Casey should be overruled, which would end federal protection of abortion rights across the country.Alex Brandon/Associated Press

A draft Supreme Court opinion obtained by Politico and published online Monday night indicates the justices are on the verge of overturning Roe v. Wade, the landmark 1973 decision that made abortion legal nationwide, but a Harvard constitutional law scholar said opinions can change, and this document does not necessarily represent the court’s final ruling.

“A draft opinion is only that: It’s a draft,” Nikolas Bowie, an assistant professor at Harvard Law School who teaches courses on constitutional law, told the Globe in a phone interview late Monday night. “Odds are this is not the latest opinion.”

“Justices are all free to change their mind at any point before the final opinion is actually issued,” he added.


The document published by Politico is labeled as a “1st Draft,” dated February, and signed by Justice Samuel Alito, a member of the court’s 6-3 conservative majority.

Bowie said he had little reason to question the authenticity of the draft published by Politico.

“This appears like a draft opinion; it has all the formatting of a draft opinion, so I have no reason to doubt its authenticity on the basis of what it looks like,” he said. “It also reads like something Justice Alito could credibly write for the majority of the court. It’s not as though the substance of the opinion is a surprise.”

The court is expected to release its final decision before its current term ends in late June or early July. Bowie said it is common for decisions with wide public attention to be released near the term’s end.

“Cases that everyone cares about also tend to be cases in which justices care the most about them,” Bowie said. “So after a majority opinion like this has circulated, it takes time for the other justices to signal whether they will support it.”


Bowie, however, said he isn’t expecting their positions will change.

“This opinion demonstrates why we need to turn to Congress to protect the rights we care about the most, rather than hoping nine unelected justices will have our nation’s best interest in mind,” he said.

Material from the Associated Press was used in this report.

Nick Stoico can be reached at Follow him @NickStoico.