Speculation about the looming decision has been intense since the December oral arguments indicated a majority was inclined to support the Mississippi law. The disclosure of Alito’s draft majority opinion - a rare breach of Supreme Court secrecy and tradition around its deliberations - comes as all sides in the abortion debate are girding for the ruling. The appearances and timing of this draft are consistent with court practice. The document is replete with citations to previous court decisions, books and other authorities, and includes 118 footnotes. The draft opinion runs 98 pages, including a 31-page appendix of historical state abortion laws. POLITICO received a copy of the draft opinion from a person familiar with the court’s proceedings in the Mississippi case along with other details supporting the authenticity of the document. Roberts also stressed that the draft opinion “does not represent a decision by the Court or the final position of any member on the issues in the case.” The court spokesperson had declined comment pre-publication. “This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here.” The work of the Court will not be affected in any way,” Roberts pledged in a written statement. “To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed. On Tuesday, after this article was published, Roberts confirmed the authenticity of the draft opinion and said he was ordering an investigation into the disclosure. If the Alito draft is adopted, it would rule in favor of Mississippi in the closely watched case over that state’s attempt to ban most abortions after 15 weeks of pregnancy.
The document, labeled as a first draft of the majority opinion, includes a notation that it was circulated among the justices on Feb. How Chief Justice John Roberts will ultimately vote, and whether he will join an already written opinion or draft his own, is unclear.
The three Democratic-appointed justices - Stephen Breyer, Sonia Sotomayor and Elena Kagan - are working on one or more dissents, according to the person. The FDA said its enforcement efforts wouldn’t target consumers, and would focus instead on manufacturers and sellers of menthol products.A person familiar with the court’s deliberations said that four of the other Republican-appointed justices - Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett - had voted with Alito in the conference held among the justices after hearing oral arguments in December, and that line-up remains unchanged as of this week. Under the newly proposed menthol policy, individual smokers wouldn’t be penalized for using menthol cigarettes, and the FDA noted that local law enforcement agencies aren’t empowered to enforce FDA regulations. Officials banned special flavors in 2009 via the Tobacco Control Act but allowed menthol to remain on the market, in part because of concern that legal repercussions might disproportionately impact Black people. Regulators have debated restrictions on menthol products for more than a decade. “The proposed rules represent an important step to advance health equity by significantly reducing tobacco-related health disparities,” Becerra said. Nearly 85 percent of Black smokers use menthol products, compared with 30 percent of white smokers, according to the FDA. Up to 238,000 of the deaths prevented would be among Black smokers, who disproportionately favor menthol cigarettes, the FDA said. Eliminating menthol from cigarettes and cigars could lead to a 15 percent reduction in the number of smokers in the nation within 40 years, resulting in about 654,000 fewer smoking-related deaths. More than 18.5 million smokers 12 years and older in the United States used menthol cigarettes in 2019, the FDA said. Menthol also enhances the addictive properties of nicotine, making it harder for smokers to quit. This flavor additive makes it easier for people to start smoking, and increases the appeal of cigarettes to young people, the FDA notes.
Menthol has a cool, minty taste and aroma that can counteract the irritation and harshness of smoking, according to the FDA. “The proposed rules would help prevent children from becoming the next generation of smokers and help adult smokers quit,” said the secretary of Health and Human Services, Xavier Becerra, in an April 28 statement announcing the proposed rule changes. Food and Drug Administration (FDA) has proposed a ban on sales of menthol cigarettes and all flavored cigars in an effort to curb youth smoking and reduce tobacco-related fatalities, the leading cause of preventable death in the United States.