WASHINGTON — In his draft opinion overturning Roe v. Wade and its guarantee of the right to an abortion, Justice Samuel Alito shrugged off the potential for a public outcry following the bombshell.
“We do not pretend to know how our political system or society will respond to today’s decision,” he wrote, in a draft leaked Monday and since confirmed as authentic by the court.
On Tuesday, he had the chance to find out.
The stunning leak of the opinion, while not necessarily the court’s final decision, threw the nation’s capital into a frenzy, as Republicans fumed about the breach but expressed muted enthusiasm for the prospect of a ruling that would clear the way for states to ban the procedure, while Democrats articulated their rage but failed to coalesce around a plan to save the nearly 50-year-old right.
“America woke up today to an unusual event in our democracy: the news that a constitutional right is about to be taken away from the American people,” said Senator Dick Durbin, the Democratic majority whip, as he stood with dozens of his colleagues on the Senate steps. The voice of one demonstrator broke through the speeches: “Do something!”
Across the street, at the Supreme Court, protesters on both sides of the issue screamed slogans in front of metal barricades, trying to drown each other out with their drums and megaphones. A secretive institution that has long sought to hover above politics faced new scrutiny, with its chief justice, John Roberts, dodging reporters outside of his Bethesda home before ordering an investigation into the leak. And pro-choice Republicans said they felt blindsided by the court, after Donald Trump-appointed justices said they thought Roe was settled law during the confirmation process, but now appear poised to overrule it.
“It rocks my confidence in the court right now,” Senator Lisa Murkowski, the Alaska Republican, told reporters.
Accusations and insinuations of betrayal reverberated across Washington and beyond, lobbed by Murkowski and Senator Susan Collins of Maine at the justices; by conservative Republicans and Roberts at the leaker; and by millions of women who thought their abortion rights would be protected by precedent.
“It’s a watershed moment,” said Mary Ziegler, an expert on reproductive law and history at Florida State University College of Law, who added the decision would set the United States on the opposite path from countries such as Kenya, Mexico, Colombia, and Ireland that have recently moved to expand reproductive rights. “What it’s going to mean for [this generation] to be pregnant in America will be very different for them than it was for their parents or even grandparents.”
The draft opinion, which was published Monday night by Politico, was circulated on Feb. 10. The news outlet reported that Alito as well as Justices Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett, and Clarence Thomas all support overturning the 1973 decision that protected abortion rights. The sweeping draft opinion called Roe “egregiously wrong,” and said it should be up to elected representatives, not the courts, to decide whether abortion should be legal, which would pave the way for at least 13 states to quickly ban the procedure and more to pass new restrictions.
Supreme Court decisions are shrouded in secrecy and almost never leak out. In a statement confirming the authenticity of the document, a court official said that it is common for drafts to be circulated and that the leaked decision did not represent the court’s final decision, nor necessarily the justices’ ultimate positions. The court is expected to issue its final decision in June or July.
President Biden called the draft “radical” before boarding Air Force One for a trip to a manufacturing plant in Alabama — a state where lawmakers have already vowed to outlaw abortion if Roe is overturned — and said that its reasoning leads him to believe that the right to gay marriage and contraception could also be under threat by this court.
“We will be ready when any ruling is issued,” Biden said in a statement. “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.”
There is no federal legislation protecting abortion rights, and Biden and other Democrats, including Senate majority leader Chuck Schumer and House Speaker Nancy Pelosi, called for that to change in a crush of press conferences on Capitol Hill.
But a grim reality for Democrats was becoming clear on Tuesday: The party with control of the White House, the Senate, and the House is currently powerless to protect abortion rights.
Even though the House has passed a bill to codify Roe into law, the measure lacks the support of two Democrats, Senator Joe Manchin of West Virginia and Senator Bob Casey of Pennsylvania. And even if they got on board, the filibuster — a legislative rule requiring a supermajority to advance most legislation that Manchin defended on Tuesday — would likely prevent it from getting a vote on the Senate floor.
“I don’t know. Flat don’t know. Time will tell,” said Senator Jon Tester, a Montana Democrat, when asked if Democrats had a plan to save Roe.
Outside the Supreme Court, a furious Senator Elizabeth Warren led protesters in a chant before speaking with reporters.
“I am angry,” Warren said. “The United States Congress can keep Roe v. Wade the law of the land, they just need to do it. . . . Republicans have been working toward this day for decades.”
Democrats said the ruling is likely to reshape the midterm elections, injecting new uncertainty into races that could be taking place where abortion will be illegal by the fall. They urged voters to elect officials who would be willing to protect abortion rights, which a majority of voters support. It’s a message they desperately hope will resonate in a year when Biden’s unpopularity seems likely to hurt their candidates.
“We are now going to fight to make sure we elect candidates across the country who believe in women’s civil liberties and civil rights, who believe that women deserve bodily autonomy and the right to make decisions about when and how and how many children they’re having,” said Senator Kirsten Gillibrand of New York.
Senator Rick Scott, the Florida Republican who is leading his party’s efforts to take control of the Senate, downplayed the ruling’s potential impact on the midterms.
“I think this is an important issue to many people, but so is inflation. So is crime, so is the border,” Scott said, dodging a question about whether Republicans would seek to ban abortion nationwide if they win control of both chambers of Congress.
“We’ll worry about that next year,” Scott said.
His party trained its fire on the leaker — whatever their motives might be — and largely sidestepped the substance of the ruling, in a possible sign Republicans are worried it will be politically unpopular. In a press conference Tuesday afternoon, Senate minority leader Mitch McConnell said the “integrity and independence of the Supreme Court is once again under attack,” before moving on to a discussion of aid to Ukraine.
But some Republicans offered muted support for the ruling itself.
“I’m pro-life, I support a decision to return the decision on abortion to states, but we’ll see what the final decision of the court is,” said Senator Mitt Romney of Utah.
The battle lines of the fight to come were clear outside the Supreme Court, where a woman with purple hair banged a drum and vowed to dance on the grave of Roe v. Wade. Later, tears came to the eyes of Renee Bracey Sherman, the executive director of an abortion rights group called We Testify, as she recalled seeing the draft opinion the previous night.
“It was a terrifying feeling, actually seeing it written down,” she said.
Ellen Fitzpatrick, an American political historian at the University of New Hampshire, said the biggest reaction to the news may now come from outside of Washington, in the form of a resurgent women’s movement.
“It’s very hard to imagine that the generations of women that are alive today . . . are just going to sit back and say, ‘Oh too bad, this right once existed and just doesn’t anymore,’ ” she said.
Globe correspondent Pranav Baskar contributed to this report