Protests for and against abortion after Supreme Court draft 1:22
(CNN) --
The legitimacy of the US Supreme Court has been deeply undermined and it may never regain its status in the eyes of the United States.
For Chief Justice John Roberts, whose concern for the institution's reputation manifests itself in nearly every opinion he writes and every public speech he delivers, recent events are a disaster of the highest order.
Not only do the five most conservative members of the court, including the three newly appointed by former President Donald Trump, appear willing to overturn half a century of constitutionally based abortion rights.
Furthermore, it appears that Politico, which published the first draft of the opinion in Dobbs v.
Jackson Women's Health Organization evaded the secrecy and security protocols that the court has long had.
These are the US states where the right to abortion would be under threat if Roe vs.
Wade
The leaking of an opinion at this early stage of writing is unprecedented.
And the fact that it came in a case that is so important to American life, a case that could affect so many women and their families, and a case that could reshape the political landscape, just makes the whole episode more frightening.
The unusual episode is likely to sow mistrust among magistrates and could affect negotiations on other pending cases due to be resolved by the end of June.
Also pending are controversies over gun control, religious rights and the Biden administration's immigration policy.
The chief justice of the Supreme Court described it as a "treason" and said it will be investigated by the court bailiff.
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"This was a single and egregious breach of that trust that is an affront to the Court and to the community of public servants who work here," Roberts said in a statement.
The integrity of the court was already in question, with public approval ratings in record decline.
The conservative supermajority on the nine-member court, coupled with a lack of transparency regarding potential conflicts of interest and some of the court's substantive issues, has fueled congressional proposals for a change in the high court.
These range from a formal code of ethics for judges to a drastic expansion in the number of seats to compensate for the dominance of the far right.
Within the court itself, the last sessions have been marked by accusations and recriminations between the judges.
Liberals and conservatives have questioned each other's motives in the cases, and the six justices on the right have sometimes bitterly divided.
Roberts, who prior to October 2020 was in control as a judge at the ideological center, has increasingly faced derision from his conservative peers and been relegated to solo opinions.
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The new breach of judicial secrecy may initially cause judges to close ranks, as they often do in the face of external scrutiny and criticism.
But it could more seriously undermine trust among the nine, by starting a blame game.
Conservative pressure to limit abortion rights
The right to abortion in the United States dates back to 1973, when the high court, by a 7-2 vote, declared that a constitutional right to privacy, rooted in the Fourteenth Amendment, protected a woman's right to terminate a pregnancy.
The justices firmly reaffirmed that fundamental right in 1992, reinforcing the principle that states cannot interfere with a woman's ability to abort before the fetus can survive outside the womb, at around 23 weeks.
Polls continue to show that most Americans oppose overturning Roe v.
Wade.
What you need to know about the stunning revelation of a draft Supreme Court ruling that could spell the end of the nation's right to abortion
The current court, however, has moved in the opposite direction.
Trump, who campaigned against Roe, was able to appoint three right-wing judges in succession.
The first in 2017, Neil Gorsuch, won a seat because Senate Republicans had in 2016 blocked any action on then-President Barack Obama's choice of appellate judge Merrick Garland.
Trump boosted Brett Kavanaugh in 2018, and then, in late 2020, following the death of staunch liberal Ruth Bader Ginsburg, he secured the Senate confirmation of Amy Coney Barrett just days before the November presidential election.
Their appointments, along with those of veteran conservative justices Clarence Thomas and Samuel Alito, suggested that it was inevitable that the new court would limit reproductive rights.
The strength of the right on multiple legal issues also made Roberts, who had opposed abortion rights, more evasive.
He was becoming increasingly concerned that the court might lean too far to the right, and he increasingly sided with what remains of the liberal wing, Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan.
Chief Justice John Roberts launches investigation into leaks after draft that would overturn Roe v.
Wade
Prior to Monday night's surprise announcement, sources had told CNN that Roberts had opposed overturning Roe entirely and had sought a possible compromise that would uphold Mississippi's controversial law limiting abortions to 15 weeks, but that would leave parts of Roe intact.
Sources said Roberts has, thus far, made no headway with the new justices, Kavanaugh and Barrett, two who have shown some reluctance compared to their right-wing colleagues.
It is hard to know what other draft opinions may have circulated among the justices or how strong the positions of some of them were since the Mississippi case was argued on Dec. 1.
behind-the-scenes drama
There may be several more weeks of negotiations before the judges' traditional summer break.
But releasing the draft opinion in such a chaotic manner could disrupt any further efforts by Roberts.
Abortion cases have historically taken multiple turns behind the scenes.
In Planned Parenthood of Southeastern Pennsylvania v.
Casey of 1992, it was in late May that then-Justice Anthony Kennedy sent a note to Justice Harry Blackmun to say that the developments would please Blackmun, the author of Roe.
It was just a month before the June 29 opinion was published when Kennedy wrote to Blackmun: "I need to see you whenever you have a spare moment. I want to tell you about some developments in Planned Parenthood against Casey, and at least part of what I tell you." It should be good news."
In that 1992 case, Kennedy and fellow Republicans Sandra Day O'Connor and David Souter wrote a joint opinion affirming Roe's essential position, even with some ambivalence.
The trio stated: "Men and women in good conscience can disagree, and we suppose some always will, about the profound moral and spiritual implications of terminating a pregnancy, even at its earliest stage. Some of us, As individuals, we find abortion offensive to our most basic moral principles, but that cannot be the basis of our decision. Our obligation is to define the freedom of all, not impose our own moral code."
Perhaps anticipating this moment, Kagan has been hard at work on opinions and comments from the dais about the importance of adhering to precedent.
When the court sticks to its precedent cases, even those that some people oppose, Kagan said during arguments in an April non-abortion case, it can improve "the legitimacy of the court and the way it works." " and talk in a "deep sense about the court as an institution and the role it plays in society".
Reversal of a precedent case, he suggested, "would have a kind of disruptive effect" not only on people's understanding of the relevant area of law in question, "but on people's understanding of the court itself."
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In his apparent first draft, dated February 10, Alito dismissed the court's usual adherence to precedent, writing that Roe v.
Wade does not deserve such consideration.
"Roe was horribly wrong from the start. His reasoning was exceptionally weak, and the decision has had damaging consequences."
Alito insisted: "And far from achieving a national agreement on the issue of abortion, Roe and Casey have inflamed the debate and deepened the division."
Abortion US Supreme Court