Chief Justice John Roberts confirmed the authenticity of the draft opinion on Tuesday.
Roberts said he had ordered an investigation into the leak, which he called an “egregious breach of trust.”
NewsNation’s D.C. Bureau Chief Mike Viqueira spoke with former prosecutor Katie Cherkasky about the leaked draft and what it could mean.
The transcript below has been edited for clarity and brevity.
Q: So what did we learn now with Alito’s draft opinions?
CHERKASKY: Ultimately, what Alito is saying here is that the Constitution does not provide any protection for the right to abortion, that states are free to legislate that as they wish.
Q: Is this up to the states? Or is this essentially saying the federal government says that there is no right to an abortion, and therefore no state can allow abortion services or abortion to be performed at all?
CHERKASKY: Well, according to the opinion, and really, under the rationale that Alito uses, it would be up to the individual states. The only thing that the Supreme Court can really look at is whether there’s a federal right, or implication involved in a law. And up to this point, it’s been identified that abortion falls under the general right to privacy.
But this opinion says that that was always incorrectly decided — that really, the Constitution does not provide for any sort of legislation on the issue of abortion. So then it would default go to the state legislatures. There is an argument that potentially federal legislation could come up if it were to be able to be passed, which doesn’t seem very likely, that could override state authority on the issue.
Q: Why are people saying the integrity of the court is at stake because of this leak?
CHERKASKY: Ultimately, the court is supposed to be the branch of government that is apolitical and makes decisions based on the law. They have no idea at this point, at least as far as we know, where (the leaked draft) came from, whether it was from somebody on the right or the left.
But if it were from, let’s say someone on the left, it looks like maybe an attempt to politicize this or to get some sort of reaction from the public before this becomes law, which could maybe impact the ultimate vote on this.
Q: How likely is it that this draft opinion by Alito would have made it until late June with the public was supposed to hear (opinions)?
CHERKASKY: I think that the timing does raise some questions about how much more change could possibly occur if they were supposed to be issuing this in June? It’s already May, but ultimately there could be people that are uncomfortable with certain language. So maybe the votes don’t change, but maybe some of the language softens a bit.
Q: I want to talk about this precedent issue because a lot of people have been bringing up Obergefell, the the case that legalized same-sex marriage in this country, other cases involving rights that the Supreme Court has granted through its decisions, even going all the way back to Loving vs. Virginia, because Virginia until 1960s had outlawed interracial marriage. So can this precedent, this logic and this legal reasoning being applied by Alito and the majority be applied to some of those laws?
CHERKASKY: That’s obviously the concern here because the right to abortion, and I think that it’s more nuanced than some people are maybe even aware of, it really falls under the broad interpretation of the right to privacy, which is why the Supreme Court said that they were able to regulate what states do with that particular issue.
And the same could be very well said about the right to same-sex marriage and things that are really private decisions that the court has interpreted as being covered by the Constitution, even though they’re not explicitly listed in the text of the Constitution.
So the interpretation of what the Constitution allows the federal government to regulate could be at risk here.
Q: What would be required by the national legislature in other words, Congress, in order to fight back if Democrats chose to do that?
CHERKASKY: Well, there has been some proposed legislation that would essentially codify Roe, which would protect the right to abortion nationally, and it would take the right away from each individual state.
But as you mentioned, practically speaking, the votes are not there…it is possible that there could be federal legislation on the issue that would then override essentially any state laws that were contradictory to that. But for practical purposes right now, that’s not possible. So I think that’s why a big push on the Democrat side is for election purpose is to, you know, up their numbers there and maybe re explore that option.
Q: If the leaker is identified, how will they be held accountable?
CHERKASKY: Ultimately, it seems (to be) more of an employment issue, because there’s certain authorizations that you have working in certain places. But on the criminal side, I think that unauthorized access to government computer systems or something along those lines, could be a potential criminal charge that could come from this.
Q: What can Democrats and opponents do to fight back against the ruling?
CHERKASKY: If this does become the law, then ultimately many states will automatically put these trigger laws into place. And then there will be subsequent litigation that comes from that. So this is only the beginning on the legal front and on the political front as well.
Q: What happens now?
CHERKASKY: Right now Roe is still the law of the land and will remain so until this opinion is issued if it does, in fact, follow along with the draft.