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'Votes change' | Legal expert says shocking leak of SCOTUS draft opinion is far from final decision

As protestors gathered at the Supreme Court late Monday, experts pointed out the leaked documents are a draft opinion and not a final ruling.

BLOOMINGTON, Ind — A document leaked from the Supreme Court reportedly showing support from a majority of justices to overturn Roe v. Wade shook the legal world Monday night.

Politico reported the leak of the draft opinion, written by Justice Samuel Alito in February, about a case challenging Mississippi's abortion ban after 15 weeks. The draft includes a reference to the 1992 case Planned Parenthood v. Casey, which acknowledged a Constitutional right to abortion services, but allowed states to put limitations on the practice. 

"We hold that Roe and Casey must be overruled," the Supreme Court draft read.

But as protestors on both sides of the abortion debate gathered on the steps of the Supreme Court in Washington late Monday, legal scholars noted the opinion was a draft and was not an official ruling by the high court.

“This is not definitive. This is only a draft opinion being circulated in the hope that it will attract, ultimately, five votes," said Steve Sanders, law professor at IU Bloomington Maurer School of Law. "So nothing’s over until it’s over, but this is still shocking on any number of levels." 

Credit: AP
A crowd of people gather outside the Supreme Court, Monday night, May 2, 2022 in Washington. A draft opinion circulated among Supreme Court justices suggests that earlier this year a majority of them had thrown support behind overturning the 1973 case Roe v. Wade that legalized abortion nationwide, according to a report published Monday night in Politico. It's unclear if the draft represents the court's final word on the matter. The Associated Press could not immediately confirm the authenticity of the draft Politico posted, which if verified marks a shocking revelation of the high court's secretive deliberation process, particularly before a case is formally decided. (AP Photo/Alex Brandon)

Sanders said while the leaked document seems to show a majority of at least five justices support Alito's writing, votes have been known to change during the drafting process.

RELATED: Report: Draft opinion suggests high court will overturn Roe v. Wade

A decision was supposed to come down on the case in the coming weeks after the Supreme Court heard arguments on the future of Roe v. Wade months ago. While many knew an overturn of the 1973 decision was possible, given the current makeup of the court, Sanders said Monday's revelation was shocking because no one expected information to come down so quickly and quite like this.

"There has never been a draft leak of an opinion like this before," Sanders said.

Credit: AP
A crowd of people gather outside the Supreme Court, early Tuesday, May 3, 2022 in Washington. A draft opinion circulated among Supreme Court justices suggests that earlier this year a majority of them had thrown support behind overturning the 1973 case Roe v. Wade that legalized abortion nationwide, according to a report published Monday night in Politico. It's unclear if the draft represents the court's final word on the matter. The Associated Press could not immediately confirm the authenticity of the draft Politico posted, which if verified marks a shocking revelation of the high court's secretive deliberation process, particularly before a case is formally decided. (AP Photo/Alex Brandon)

The opinion, if it remains moving forward, Sanders said, could impact healthcare for millions of people.

"I think it would be unprecedented for the Supreme Court to take a personal right like this, an individual liberty that goes this closely to decision making about intimate and personal matters," he said. "The Supreme Court has never rolled back, I think, such a significant question of individual liberty as this one."

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Should the court overturn Roe v. Wade, Sanders said each state would determine a woman's right to an abortion, since there would no longer be protection under the Constitution. 

“Women in states like Illinois and California really have very little to worry about because those states already have and can be expected to continue to maintain very liberal abortion laws," Sanders told 13News Monday. "Women in Indiana, places like Texas, the Carolinas, Florida, many other conservative states, the situation will be very different. Basically, what this means is those states will have a green light to make abortion as restrictive as they want to.” 

Neither the Associated Press nor NBC News were able to independently confirm the Politico report Monday and the Supreme Court offered no comment.

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