The Hill’s Morning Report — Leak: Justices poised to overturn Roe v. Wade

by Alexis Simendinger and Al Weaver - 05/03/22 6:36 AM ET

A Supreme Court majority privately voted late last year to overturn Roe v. Wade, the landmark 1973 ruling that said the Constitution protects a pregnant woman’s right to choose abortion without excessive government restriction, according to a draft opinion written by conservative Justice Samuel Alito and published by Politico.

The Democratic-appointed justices on the court, Stephen Breyer, who will retire this summer, Elena Kagan and Sonia Sotomayor, are working on one or more dissents, Politico reported, noting that Chief Justice John Roberts’ ultimate vote is unclear. The justices voting with Alito: Clarence Thomas, Brett Kavanagh, Neil Gorsuch and Amy Coney Barrett.

According to CNN sources, Roberts did not want to overturn Roe and would likely side with Breyer, Kagan and Sotomayor. Instead, he is willing to uphold the Mississippi law banning abortions after 15 weeks of pregnancy, per the report.

The unprecedented leak of a draft opinion, in particular a ruling that would fundamentally alter reproductive rights, states’ authority and American politics, startled Supreme Court lawyers, court experts, members of Congress and journalists. Experienced court watchers described the draft opinion, which does not reflect the comments of Alito’s fellow justices, as appearing to be legitimate.

“It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin,” SCOTUSblog tweeted.

“The Court has no comment,” Supreme Court public information officer Patricia McCabe told The Washington Post. Protesters representing various opinions swarmed the court before midnight (Politico). Abortions rights activists plan protests across the United States today (The New York Times).

Speaker Nancy Pelosi (D-Calif.) and Senate Majority Leader Charles Schumer (D-N.Y.), in a joint statement, said a majority vote to overturn Roe “would go down as an abomination,” adding that it would be “one of the worst and most damaging decisions in modern history.”

“Several of these conservative Justices, who are in no way accountable to the American people, have lied to the U.S. Senate, ripped up the Constitution and defiled both precedent and the Supreme Court’s reputation,” the Democratic leaders wrote.

Politico: 10 key passages from Alito’s draft opinion, which would overturn Roe v. Wade.

Senate Judiciary Committee member Amy Klobuchar (D-Minn.) tweeted Monday night that the published Alito opinion pointed to a role for Congress. “It is a fundamental right for a woman to make her own health decisions. We must protect the right to choose and codify Roe v Wade into law,” she said.

As The Hill’s Jordain Carney notes, the Senate voted 46-48 earlier this year to codify Roe. Sen. Joe Manchin (D-W.Va.) was the lone Democrat to cross the aisle in opposition.

Overturning Roe would strike down what many abortion rights defenders, including Supreme Court justices appointed by presidents of both political parties, have long described as settled law. It would limit access to abortions across much of the country, including parts of the South and Midwest. In at least 13 states, abortion would immediately become illegal. As Alito’s opinion notes, the ruling would allow each state to set its own laws and restrictions. One of those restrictions deals with medication abortion, accompanied by criminal penalties.

“The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion,” the Alito draft states. “Roe and [1992’s Planned Parenthood v.] Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”

Planned Parenthood, in a statement late Monday, said, “The leaked opinion is horrifying and unprecedented, and it confirms our worst fears.”

A majority of Americans oppose overturning the 49-year-old ruling, according to recent surveys. A CNN poll in January found that 69 percent of respondents were against doing away with Roe while 30 percent were in favor.

The news that the court majority would overturn Roe, despite months if not years of public speculation and anticipation, immediately upended this year’s midterm election terrain. The court’s decision will almost certainly mobilize supporters in both parties ahead of the November contests. Among the first to react to the news were Senate Democratic candidates; many echoed Klobuchar’s call to abolish the Senate 60-vote filibuster threshold as a way to legislatively affirm Roe while a Democratic president is in the White House (Axios).

On the GOP side, lawmakers were incensed with the disclosure of the high court’s draft. Sen. Tom Cotton (R-Ark.) said that the court and the Justice Department “must get to the bottom of this leak immediately using every investigative tool necessary” (The Hill).

Related Articles

■ Kathryn Kolbert and Julie F. Kay, The New York Times: Roe is as good as gone. It’s time for a new strategy.

■ Politico: Democrats hope draft abortion opinion will jolt midterm elections.

LEADING THE DAY

POLITICS

One of the first major tests of former President Trump’s grip on the Republican Party will be on display tonight in Ohio as he looks to power J.D. Vance across the finish line to snag the GOP’s Senate nomination.

Vance, the author of “Hillbilly Elegy,” struggled for months to gain traction with the Ohio GOP electorate despite being buoyed by PayPal founder Peter Thiel. Enter Trump, who officially endorsed Vance’s efforts in mid-April, leading to nearly a doubling of his support in recent surveys.

Former Ohio Treasurer Josh Mandel trails Vance, currently the leader, by 3.5 points, according to the latest RealClearPolitics average of polls.

“It’s very simple. … Donald Trump resurrected J.D. Vance from the dead,” a GOP strategist with ties to Ohio told the Morning Report.

One Republican operative in the state said if Vance triumphs, he’ll know who to thank.

“If he wins Vance only owes two people: Peter Thiel and Donald Trump,” the operative said, adding that the late infusion of cash from Thiel to a pro-Vance super PAC has made a big difference down the stretch to combat pro-Mandel ads run by the Club for Growth.

Of the $11 million spent in the final week, nearly half of all spending ($5.2 million) was by Mandel or groups supporting him, compared to $3 million by Vance and his supporters. More than $63 million has been spent on the primary overall.

■ Alexander Bolton, The Hill: Senate GOP privately roots against Trump in Ohio primary.

■ NBC News: Vance works to lock up Ohio GOP Senate race as Trump-averse candidate rises.

However, political watchers are also keeping an eye on state Sen. Matt Dolan (R), who is on helium watch after a late boost in the polls has given him a shot to eke out a win today.

Dolan, whose family owns the Cleveland Guardians, is the only one in the race not to seek Trump’s endorsement but has seen his stock grow as Vance, Mandel and others in the race have attacked one another, giving Dolan a clear lane ahead of Election Day. The GOP strategist with Ohio ties likened Dolan, who has spent more than $10 million himself on the race, to businessman Mike Gibbons, who briefly became the leader in the race in February due to a one-two punch of millions in ads and the lack of attacks from rivals.

“Nobody is attacking him,” the Ohio GOP operative said of Dolan, adding that they give him a 35 percent shot to win tonight (compared to a 40 percent chance for Vance and 25 percent for Mandel). “It’s a three-way race.”

The only question is whether Dolan has run out of real estate to land the plane and win. As a third GOP operative surmised, it “seems like a stretch to think he can pull it out.”

■ The Hill: Five things to watch in the Ohio primaries.

■ Niall Stanage: The Memo: Ohio primary puts Trump’s power to the test.

■ The Wall Street Journal: Trump’s influence faces test in GOP primaries in May.

■ The Hill: Vance waves off Trump fumbling his name: “I’m not worried about it at all.”

The Senate race is not the only race worth keeping an eye on heading into tonight. Rep. Tim Ryan (D-Ohio) and Ohio Gov. Mike DeWine (R) seem likely to take home the Senate Democratic nomination and the GOP gubernatorial nod, respectively. However, there is intrigue at the House level. Rep. Shontel Brown (D-Ohio), who won the special election last year to replace Housing and Urban Development Secretary Marcia Fudge, is facing a rematch against Nina Turner, a leading progressive voice who is backed by Sen. Bernie Sanders (I-Vt.). Brown defeated Turner in the August primary by 5 percentage points to win the Cleveland-area seat and has some new levels of support this year, as Biden endorsed her last week.

Biden will be in Cincinnati Friday for an event with manufacturing leaders. It will take place hours after the government’s April jobs report is released.

■ Reid Wilson, The Hill: Busy month of primaries to set stage for midterms.

■ Politico: Sen. Todd Young (R-Ind.) faulted Trump for Jan. 6 — and is set to win tonight’s GOP primary uncontested.

➤ UKRAINE CRISIS

Pelosi (D-Calif.) on Monday argued that Russia’s actions in Ukraine should prompt the toughest military response and warrants the harshest sanctions set possible as she wrapped up her trip to Eastern Europe.

Pelosi, joined by six House Democrats, met with Polish President Andrzej Duda on Monday in an attempt to maintain and strengthen ties with the Ukrainian neighbor and a close NATO ally in the region as the U.S. prepares another aid package for the war-torn nation.

“I think they have done enough to justify the strongest possible military response, the strongest sanctions to make the case that this is not tolerable,” Pelosi said.

■ The Washington Post: Evoking the “finest hour” refrain of former Prime Minister Winston Churchill, British Prime Minister Boris Johnson today will address Ukraine’s parliament via video link.

■ CNN: First lady Jill Biden will travel to Romania and Slovakia later this week to support Ukrainian refugees.

Elsewhere in the fight against Russia, the European Union is on the verge of passing a new sanctions package that could include an embargo on purchasing oil from Moscow after Germany threw its support behind the proposal. The new batch of sanctions would be the sixth round passed by the EU and cut off a major revenue stream for the Russians. Ukrainian officials have argued the continued buying of oil from Moscow is funding its war efforts.

“We expect a new package from the European Union soon. This package should include clear steps to block Russia’s revenues from energy resources,” said Ukrainian President Volodymyr Zelensky (Reuters).

The Wall Street Journal: Ukraine says it sank two Russian naval boats.

IN FOCUS/SHARP TAKES

➤ CONGRESS

American taxpayers are generous people during emergencies, but when steered by Congress, that generosity can move slowly.

Lawmakers are weighing Biden’s request for $33 billion in supplemental funding for weapons, economic and humanitarian aid for Ukraine during its war with Russia. The proposal is larger than the defense budgets of some countries (Newsweek) and follows weeks of separate White House entreaties to lawmakers to approve $22.5 billion (since whittled to $10 billion) for additional COVID-19 needs at home and abroad. Republicans favor helping Ukraine but want to spend less on the pandemic based on the argument that previously appropriated federal resources to combat the coronavirus remain unspent.

The debates about what to spend for a pair of ongoing emergencies involve the budget, partisanship, the unrelated politics of immigration during a midterm election year, and legislative process and strategy, which can help explain why House and Senate compromise will take a while to sort out.

Schumer on Monday predicted the upper chamber could act “as soon as next week” on legislation to help Ukraine. The House is not in session this week, and Sen. Michael Bennet (D-Colo.), whose vote might be needed, is currently working at home in Denver in isolation after testing positive for COVID-19.

“It is my hope that a bipartisan agreement can be reached very soon,” Schumer added without describing what that might entail.

The Hill’s Jordain Carney reports that Democrats are pondering whether to bring legislation to the floor to help Ukraine paired with additional COVID-19 resources, but a decision about the floor process has not been reached. The downside of single-tracking: U.S. help for Ukraine, already pledged by the president, the Speaker, the Senate majority leader and many Republican lawmakers, could lose rather than gain momentum.

■ The Hill: Republicans cast Democrats’ calls for broad-based student loan cancellation as a “boondoggle” backed by progressives.

■ The Hill: The special Jan. 6 House investigative panel said Monday it wants House GOP colleagues Reps. Mo Brooks (Ala.), Andy Biggs (Ariz.) and Ronny Jackson (Texas) to meet with members about their contacts with the White House and pro-Trump supporters before and after the 2021 attack on the Capitol. What is the panel looking for from House members? The Washington Post has an analysis HERE.

“We consider it a patriotic duty for all witnesses to cooperate,” Chairman Bennie Thompson (D-Miss.) and Vice Chairwoman Liz Cheney (R-Wyo.) said in a joint statement.

And speaking of Cheney, Trump plans a Wyoming rally on May 28 to try to unseat his outspoken GOP nemesis (The Hill).

A Republican National Committee lawsuit against the Jan. 6 investigative committee was rejected on Sunday by a federal judge (The Hill).

On Monday, a federal jury convicted former New York Police Department officer Thomas Webster for his violent actions Jan. 6 at the Capitol aimed at a D.C. police officer, which he asserted were self-defense. Jurors deliberated for less than three hours before they convicted Webster on six criminal counts. He will be sentenced in September (The Associated Press).

➤ ADMINISTRATION

GOP lawmakers and candidates have assailed an internal Department of Homeland Security team that is focused on disinformation as a U.S. security issue, arguing the project and its new leader, Nina Jankowicz, seek to muzzle free speech. Homeland Security Secretary Alejandro Mayorkas has refuted the Republican assertions as groundless. He will testify Wednesday to senators.

The department initially said the board would focus on countering Russian disinformation ahead of the midterm elections as well as countering misinformation aimed at migrants eager to enter the U.S. Critics seized on the board’s broad-sounding and clumsy title to suggest nefarious intent (The Washington Post).

The Hill: Biden and former President Clinton shared a private lunch on Monday. Biden had lunch last month with former President Obama. In addition to shared policy goals, a number of senior advisers who served Clinton and Obama are back in government in the Biden administration.

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OPINION

■ The end of Roe, by Jessica Bruder, opinion contributor, The Atlantic. https://bit.ly/3vCgsN3

■ Upholding Roe would be final blow to the modern conservative coalition, by Philip Klein, editor, National Review Online https://bit.ly/39zOCIH

WHERE AND WHEN

The House meets for a pro forma session at 10 a.m.

The Senate convenes at 10 a.m. and resumes consideration of the nomination of Joshua Frost to be assistant Treasury secretary for financial markets.

The president will travel to a Lockheed Martin facility in Troy, Ala., to speak at 2 p.m. CDT about Javelin anti-tank missile systems made by the defense contractor and provided by the U.S. to Ukraine (The Hill). Biden will return to the White House this evening.

Vice President Harris tested negative for COVID-19 on Monday and will return to in-person work today. She will address a We Are Emily National Conference and Gala at 7 p.m.

Secretary of State Antony Blinken at 11 a.m. will speak about press freedom globally during an event at the Washington Foreign Press Center. Blinken’s remarks will be live streamed and on YouTube. The secretary will speak at a 1:35 p.m. luncheon convened by the Washington Conference on the Americas, co-hosted by the State Department’s Bureau of Western Hemisphere Affairs and the Council of the Americas.

🖥 Hill.TV’s “Rising” program features news and interviews at http://digital-staging.thehill.com/hilltv, on YouTube and on Facebook at 10:30 a.m. ET. Also, check out the “Rising” podcast here.

ELSEWHERE

➤ CORONAVIRUS

New York City on Monday boosted its COVID-19 alert level from “low” to “medium” as case levels increase. The move does not bring with it any new restrictions, which could happen if the alert level rises again to “high” (The Hill). New York Mayor Eric Adams (D) has pointed to relatively stable hospitalizations for COVID-19 infections, which remain a fraction of what they were in January during the omicron spike (The New York Times).

The Biden administration is making antiviral treatments for COVID-19 infections a priority with promotion of Pfizer’s Paxlovid, a drug that is now more widely available. The White House was quick to mention that Harris took the drug when she recently tested positive for the coronavirus (The Hill). … In Denmark, 1.1 million doses of COVID-19 vaccine are set to be discarded in the coming weeks because they will expire soon (The Associated Press).

Total U.S. coronavirus deaths reported as of this morning, according to Johns Hopkins University: 993,999. Current average U.S. COVID-19 daily deaths are 307, according to the Centers for Disease Control and Prevention.

➤ SUPREME COURT

Separate from Monday’s Roe news, justices on Monday ruled unanimously that Boston violated the Constitution by refusing to issue a permit to a Christian group to fly its flag outside City Hall while allowing other organizations to hoist their banners. The court said the city infringed upon free speech protections by declining Camp Constitution’s request to fly a Christian flag bearing the Latin cross to commemorate Constitution Day and honor the Christian community’s civic contribution (The Hill and The Associated Press).

➤ INTERNATIONAL

The State Department on Monday said the death of Egyptian economic researcher Ayman Hadhoud in March requires a thorough and transparent investigation after he died in a Cairo psychiatric hospital where he was sent by security services that had detained him (Reuters and Al Jazeera).

THE CLOSER

And finally … In the nation’s capital, May 3 marks the date in 1802 when Washington, D.C., was incorporated as a city and was given a mayor-council form of government after Congress abolished a governing board of commissioners. The debate about Washington, D.C.’s governance has raged ever since. The omission for D.C. residents of voting rights in Congress has been described as an “accident” of history, one that many are working to correct.

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