Leaked SCOTUS draft opinion sparks abortion debate and investigation

OAKLAND, Calif. - Chief Justice John Roberts confirmed Tuesday that the draft opinion leaked to the news organization Politico was legitimate.

The draft document was made public Monday and was written by Justice Samuel Alito. The draft was reportedly written in February in response to deliberations over a Mississippi law that would ban abortions after 15 weeks of pregnancy. The 98-page draft opinion indicates that at the time, a majority of the justices on the high court favored overturning the landmark 1973 Roe v. Wade decision that legalized abortion.

"To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed. The work of the Court will not be affected in any way," wrote Chief Justice Roberts in a statement Tuesday.

"This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here," wrote Roberts, "I have directed the Marshal of the Court to launch an investigation into the source of the leak."

Politico, which first obtained and published the draft opinion, would only say it came from a person familiar with court proceedings. Typically, only a small group of about 70 people would see such drafts including the justices and their clerks who have to sign pledges of confidentiality.

The leak itself was a breach of a long-held protocol of privacy around Supreme Court deliberations. The privacy allows justices to hold a rigorous debate among themselves before anything is made public.

"They really work in complete privacy. It's just the justices and the clerks. They exchange opinions. And we know that these drafts can change," said Jessica Levinson, a Loyola Law School professor.

Legal experts emphasize the draft opinion is not final.

"So, at this point they're probably continuing to exchange dissenting opinions, concurrences, the majority opinion. They're editing it," said Levinson, "I think frankly as a result of the leak, and this could be the purpose of the leak, that it's less likely that we will see changes now."

Levinson says it will be interesting to see how Chief Justice Roberts ends up voting, as the draft document shows him at odds with the five conservative justices in favor of overturning Roe v. Wade and the three liberal justices in favor of preserving it. Roberts seemed inclined to uphold the Mississippi abortion ban but keep Roe v. Wade in place.

"We've talked in the past about the Affordable Care Act decision where at the last moment, the Chief Justice changed his vote at the last minute and that changed the entire outcome of that case," said Levinson.

Some say whatever the court's final vote, the draft opinion reveals a great deal about Chief Justice Roberts' influence on the Supreme Court.

"He wasn't yet with the majority, he wasn't yet with the three liberal dissenters," noted Levinson, "My guess is he's going to write separately, but it's quite clear that I think this is no longer Chief Justice John Roberts court, in that he can't hold the center. He can't hold the conservatives together to go his way."

About 1,000 people gathered outside the Supreme Court building Tuesday, at times with clashes between those who support Roe v. Wade and those in favor of the Supreme Court overturning it.

"I am so excited and so optimistic, and I really hope it sticks," said one woman opposed to abortions.

"This is part of our fundamental freedoms, the right to privacy is a right under the Constitution," said another woman who says she used to be a Republican, but switched to be an Independent because she feels the GOP is not adhering to values of individual choice and privacy.

A new FOX News poll shows a vast majority of registered voters 63% believe Roe v. Wade should stand compared to 27% who say it should be overruled.

President Biden Tuesday called the draft opinion radical and a violation of rights to privacy.

"I think the decision in Roe was correct because there's a right to privacy. There can be limitations on it, but it cannot be denied," said President Biden.

The Supreme Court is expected to issue an official ruling on the Mississippi case before summer recess in late June or early July.

Jana Katsuyama is a reporter for KTVU.  Email Jana at jana.katsuyama@fox.com and follow her on Twitter @JanaKTVU or Facebook @NewsJana or ktvu.com.