Colorado Impacts If Roe V. Wade Is Overturned

COLORADO — A draft majority opinion reportedly leaked to Politico suggests that the U.S. Supreme Court is poised to overturn Roe V. Wade, the landmark abortion ruling. A final decision on the case is not expected until late June or July.

Chief Justice John Roberts on Tuesday confirmed the authenticity of the draft opinion but said it does not represent a decision by the high court or the final position of any of the court’s members. Roberts also directed the Marshal of the Court to investigate the source of the leak.

Politico reported Monday that it had obtained the draft majority opinion written by conservative Justice Samuel Alito and circulated inside the court that strikes down Roe and Planned Parenthood v. Casey, the case that affirmed a woman’s right to obtain an abortion.

If the court strikes down Roe, abortion rights would be left to the states to decide. Right now, 22 states have laws on their books to ban or restrict abortion, and four more appear poised to do so, according to the Guttmacher Institute, an abortion rights policy group.

In April, Gov. Jared Polis signed a new bill into law that codifies a person's "fundamental right to make reproductive health-care decisions free from government interference," further protecting abortion in the state.

"While states like Texas, Florida and Arizona are engaging in the unwelcome intrusion of government into deeply personal and religious decisions, Colorado remains a refuge where individual rights are respected and where any person has the ability to live, work, thrive, and raise a family on their own terms," Polis said in a statement. "While this is extremely disappointing news, representing a radical shift in American life away from individual freedom, in Colorado we will continue to fight for and respect the right to make decisions about your own body and medical health."

Much can change before the court publishes its final decision. As draft opinions are circulated among justices, votes can and have changed on controversial cases, Politico reported.

Citing a person familiar with the court’s deliberations, Politico reported four other Republican-appointed justices voted with Alito: Clarence Thomas and three Trump-appointed justices, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

Abortion rights advocacy and other groups were quick to react after Politico published its report.

“Let's be clear: This is a draft opinion. It’s outrageous, it’s unprecedented, but it is not final,” Planned Parenthood tweeted. “Abortion is your right — and it is STILL LEGAL.”

The American Civil Liberties Union said overturning Roe “would deprive half the nation of a fundamental, constitutional right that has been enjoyed by millions, for over 50 years.”

“The breach in protocol at the Court pales in comparison to the breach in constitutional freedoms that the Court is charged with upholding,” the ACLU said.

The National Right to Life organization said it would “let the Supreme Court speak for itself” and would wait for its decision before commenting.

"We are devastated, but not surprised. This Supreme Court decision, if issued as drafted, will imperil the lives of those seeking an abortion and threaten the health, safety, and reproductive freedom of millions of Americans," Majority Leader Daneya Esgar, Rep. Meg Froelich and Sen. Julie Gonzales said in a joint statement. "Colorado will not go back to a time when patients were forced to seek out unsafe abortions, putting their health and lives at risk. We will continue fighting to keep abortion legal for all Coloradans and the countless individuals who will be forced to travel to our state for care, or carry unsafe pregnancies to term."

The Supreme Court heard oral argument late last year on a Mississippi case challenging Roe. The case, Dobbs v. Jackson Women's Health Association, challenges a Mississippi law that bans abortions in most cases after 15 weeks of pregnancy.

The law undercuts the standard set by Roe that guarantees women access to the procedure up until the fetus is viable outside her womb, typically around 23 or 24 weeks after conception, and longer in cases where the woman's life or health is in jeopardy.

Mississippi’s lawyers argued that striking down Roe, and the Planned Parenthood v. Casey case that affirmed it, is the only means available to enforce the ban.

In Roe, the Supreme Court said an unwanted pregnancy could lead a woman to "a distressful life and future." In the 1992 case, Casey v. Planned Parenthood, the court upheld Roe, finding that abortion rights were necessary for "women to participate equally in the economic and social life of the nation."

Lawyers for the state of Mississippi proposed an array of mechanisms to uphold the 15-week abortion ban but said the court ultimately should overturn the "egregiously wrong" Roe and Casey rulings.

If the court "does not impose a substantial obstacle to 'a significant number of women' seeking abortions," the state argued in December, the justices should reinterpret the "undue burden" standard established in Roe and give the state the authority to "prohibit elective abortions before viability" of the fetus.

The Center for Reproductive Rights, which challenged the law with the Jackson Women's Health Organization, argued that although the Constitution does not address pregnancy, courts have upheld the decision in Roe, which was tied to privacy and personal autonomy.

"Every version of the State's argument amounts to the same thing: a request that the Court scuttle a half-century of precedent and invite states to ban abortion entirely," the plaintiffs' brief states.

In oral arguments, Center for Reproductive Rights Senior Director Julie Rikelman said the state's ban on abortion two months before a fetus is viable outside the womb is "flatly unconstitutional under decades of precedent."

"Two generations have now relied on this right, and 1 out of every 4 women makes a decision to end a pregnancy," Rikelman said.

The plaintiffs also argued that denying women access to abortion is detrimental to their physical and emotional health.

Though the leaking of the draft opinion is unprecedented and a blow to an institution that holds the secrecy of its deliberations sacrosanct, the Supreme Court’s shift on abortion rights isn’t unexpected. The 6-3 conservative majority on the court previously signaled that it may be willing to impose new restrictions on abortion.

According to the Politico report, the three Democratic-appointed judges — Stephen Breyer, Sonia Sotomayor and Elena Kagan — are writing dissent opinions. It’s unclear how Chief Justice John Roberts will vote or if he will write an opinion of his own.

"This was exactly what we feared and why it was so important for Colorado to protect the fundamental right to abortion into law with #RHEA4CO," the Colorado Organization for Latina Opportunity and Reproductive Rights (COLOR) tweeted. "This doesn't end here."