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'We're in uncharted waters': Many questions linger after unprecedented leak of Roe v. Wade draft opinion

Polis signed bill enshrining abortion access into Colorado state law last month
APTOPIX Supreme Court Abortion
Posted at 6:25 AM, May 03, 2022
and last updated 2022-05-03 08:25:50-04

A draft opinion leaked to Politico suggests that earlier this year a majority of U.S. Supreme Court justices supported overturning the 1973 case Roe v. Wade that legalized abortion nationwide. Written in February by Justice Samuel Alito, the draft opinion, if authentic, says Roe was wrong and that the right to an abortion should be decided by politicians and not the courts.

The high court's final opinion has not been released, and votes can change before the final ruling is made. That decision is not expected until late June.

Aya Gruber, a professor of law at CU Boulder, called the leak unprecedented.

“The leak is very surprising. I think, ultimately, the idea that the Supreme Court was poised to overturn Roe v. Wade, that probably could have been predicted," Gruber said. “Not just a leak, but the leak of an entire first draft would make it into the press is, I believe, unprecedented. I don't think it's ever happened before.”

According to Gruber, first drafts can change when compared to the final version.

“Some final drafts can be close to the first draft, but some are very different," Gruber said. "And it'll be really interesting. We're in uncharted waters trying to predict how this leak is going to affect that process from here on out."

However, Gruber said one can fairly assume chances are slim to none that Roe v. Wade will survive.

“Any interpretation in the past we can argue is wrong. And so we don't have to follow precedent," Gruber told Denver7. "That's giving this Supreme Court a lot of power."

Advocates on both sides of the abortion debate said they weren't surprised at the court's potential decision.

“We knew this was coming. We knew we had to act, and we got it done. And I'm really proud of that," said Colorado Rep. Meg Froelich, D-Arapahoe.

Froelich was one of the prime sponsors of the Reproductive Health Equity Act, which was signed into Colorado law last month. The bill affirms access to abortion and reproductive healthcare in the state and was passed ahead of this anticipated move from the Supreme Court.

Froelich said the next step to securing abortion rights in Colorado is trying to get them into the Colorado Constitution. She expects that push to happen in 2024.

“Until we get it in the Constitution... until we pass our own ballot measure, then we'll really be safer," Froelich said. "But for now, yes, the Reproductive Health Equity Act confirms and codified that abortion is legal in Colorado.”

Following Politico's report, Colorado Governor Jared Polis issued a statement, saying in part, "In Colorado we will continue to fight for and respect the right to make decisions about your own body and medical health."

On the other side of the debate, advocates against abortion are praising the Supreme Court's potential decision.

“Supreme Court justices now understand early human development so much better than we did in the 70s, and they realize the value of even early human life and the potential that we need to protect," said Lynn Grandon, director of Respect Life Denver.

Congressman Doug Lamborn, who represents Colorado's 5th congressional district, also showed his support for overturning Roe v. Wade in a statement issued Monday night.

“I pray and am hopeful that these reports are true, and the Supreme Court does the right thing," Lamborn said. "The 1973 Roe v. Wade decision was tragically wrong and has cost over 73 million unborn children their lives. I have always fought for the lives of the unborn and will never waiver in my fight.”

After seeing this apparent first draft of the decision, many believe it will mean Colorado will experience more demand from other states when it comes to people seeking abortions.