According to an initial draft majority opinion authored by Justice Samuel Alito and shared inside the court and acquired by POLITICO, the Supreme Court has voted to overturn the landmark Roe v. Wade decision.
The draft ruling is a vehement, unabashed rejection of the 1973 judgment that secured federal constitutional safeguards for abortion rights, as well as a second 1992 decision – Planned Parenthood v. Casey – that substantially upheld the right. Alito comments, “Roe was egregiously wrong from the start.”
“We hold that Roe and Casey must be overruled,” he writes in the document, labeled as the “Opinion of the Court.” “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
In the past, deliberations on contentious matters were haphazard. As draft opinions circulate, justices can and do change their votes, and key decisions can be subject to many versions and vote-trading, sometimes until only days before they are announced. The court’s decision will not be final until it is published, which is expected to happen within the next two months.
Four other Republican-appointed justices – Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – voted with Alito in the conference held among the justices after hearing oral arguments in December, according to a source familiar with the court’s deliberations, and that line-up remains unchanged as of this week.
According to the source, the three Democratic-appointed justices — Stephen Breyer, Sonia Sotomayor, and Elena Kagan – are working on one or more dissents. It’s uncertain how Chief Justice John Roberts will vote in the end, or whether he’ll join a previously prepared opinion or write his own.
The paper, described as an initial draft of the majority opinion, is marked as having been exchanged among the justices on February 10th. If the Alito draft is approved, it will decide in Mississippi’s favor in a widely watched case involving the state’s attempt to prohibit most abortions after 15 weeks of pregnancy.
A Supreme Court official declined to comment on the draft paper or make another court representative accessible to answer questions about it.
The effect of the Draft on abortion
The ruling’s immediate effect, as written in February, would be to remove a half-century of federal constitutional protection of abortion rights and let each state to determine whether to restrict or prohibit abortion. It’s unclear whether the draft has been revised since then.
States now, not the federal government will decide to permit or disallow abortion.
In the modern history of the court, no draft ruling has ever been made public while a case was still ongoing. The unusual disclosure is certain to exacerbate the argument over what was already the most divisive case on the docket this term.
The draft opinion provides a rare glimpse into the justices’ thoughts in one of the court’s most important cases in the last five decades. Some observers believed that the conservative majority would whittle away at abortion rights without overthrowing a 49-year-old rule outright. According to the document, the court intends to overturn Roe’s logic and legal protections.
POLITICO obtained a copy of the draft opinion from a source familiar with the court’s processes in the Mississippi case, as well as other evidence to back up the document’s legitimacy. The draft opinion is 98 pages long, including a 31-page appendix on state abortion laws from the past. There are 118 footnotes in the paper, which includes citations to earlier court rulings, publications, and other authorities. This draft’s appearances and timing are in line with court precedent.
The release of Alito’s draft majority opinion — an unusual breach of Supreme Court secrecy and tradition surrounding the court’s deliberations – comes as both sides of the abortion issue brace for the outcome. Since the December oral arguments, which showed a majority was inclined to sustain the Mississippi legislation, speculation about the impending decision has been considerable.
Justices hold preliminary votes on matters shortly after debate, and a member of the majority is assigned to compose a draft of the court’s opinion, according to long-standing court norms. The draft is frequently revised in consultation with other justices, and in some situations, justices alter their votes entirely, raising the potential that the current Dobbs v. Jackson Women’s Health Organization alignment will shift.
When the chief justice is in the majority, he usually assigns majority opinions. When he is not present, the majority’s most senior justice makes the decision.
Alito, a George W. Bush appointee who joined the court in 2006, contends that the 1973 abortion rights decision was an ill-conceived and deeply flawed decision that created a right that was not mentioned in the Constitution and unwisely sought to remove the contentious issue from the political branches of government.
According to a draft opinion, the Supreme Court has voted to repeal abortion rights. Alito’s draft opinion, which would overturn Roe v. Wade, has ten crucial sections.
How common is a Supreme Court snub? Extremely uncommon
Alito’s draft ruling would reverse a decision by the 5th Circuit Court of Appeals in New Orleans, which concluded the Mississippi legislation violated Supreme Court precedent by effectively prohibiting abortions before viability.
According to Alito, Roe’s “survey of history ranged from the constitutionally irrelevant to the plainly incorrect,” and its reasoning was “exceptionally weak,” with “damaging consequences” from the original decision.
“A right to abortion is not deeply rooted in the Nation’s history and traditions,”Alito writes.
Alito cites a number of critics of the Roe judgment who agree with him. He also mentions liberal giants like the late Justice Ruth Bader Ginsburg and Harvard Law Professor Laurence Tribe, who disagreed with Roe’s rationale or its impact on the political process at different periods in their careers.
Alito’s scathing criticism of Roe, as well as the support of at least four other justices, reflects the court’s rightward shift in recent decades. Roe v. Wade was decided 7-2 in 1973, with five Republican appointees supporting two Democratic presidents’ nominees.
Roe v. Wade – Overturned: the future of abortion
If Roe v. Wade is overturned, abortion availability will be severely restricted in wide parts of the South and Midwest, with almost half of the states poised to enact comprehensive abortion bans right away. The practice could still be lawful in any state.
The proposal concludes, “The Constitution does not preclude citizens of each State from regulating or prohibiting abortion.” “Roe and Casey took use of their power. We now have the capacity to overturn those judgments and return power to the people and their elected representatives.”
The draft features the acerbic rhetorical flourishes that Alito is known for, and which have previously irritated Roberts, a Bush appointee.
Alito’s draft opinion attacks the majority opinion in Roe, written by Justice Harry Blackmun, a Nixon appointee who died in 1999, in an almost contemptuous tone.
“Roe expressed the ‘feel[ing]’ that the Fourteenth Amendment was the provision that did the job,” Alito writes, “but its message seemed to be that the abortion right could be found somewhere in the Constitution and that locating it was not of paramount importance.”
The “viability” distinction between fetuses incapable of living outside the womb and those capable of doing so, according to Alito, “makes no sense.”
He refers to doctors and nurses who terminate pregnancies as “abortionists” in multiple places.
Roberts’ lone concurrence used the more neutral word “abortion providers” when he sided with liberal jurists in 2020 to prohibit a Louisiana legislation imposing stricter rules on abortion clinics. In a solitary dissent in the same case, Justice Clarence Thomas used the phrase “abortionist” 25 times.
Alito’s use of the phrase “egregiously wrong” to define Roe resembles the language used by Mississippi Solicitor General Scott Stewart in December to defend his state’s 15-week abortion restriction. The statement appeared in an opinion written by Kavanaugh as part of a 2020 judgment requiring unanimous jury verdicts in criminal cases.
In that opinion, Kavanaugh called two well-known Supreme Court decisions “egregiously wrong when decided”: Korematsu v. United States, a 1944 decision upholding Japanese American internment during WWII, and Plessy v. Ferguson, an 1896 decision that justified racial segregation under the rubric of “separate but equal.”
The Supreme Court has never formally reversed Korematsu, although Roberts’ judgment upholding then-President Donald Trump’s travel ban order in 2018 was overturned.
The legacy of Plessy v. Ferguson
Plessy remained the law of the land for nearly six decades, until Brown v. Board of Education, a 1954 school desegregation case, invalidated it.
“It was ‘egregiously wrong,’ on the day it was decided,”Alito says, quoting Kavanaugh.
In small type, Alito’s draft opinion included a list of roughly two pages of decisions in which the justices disregarded past precedents, with many of the outcomes praised by liberals.
The suggestion that permitting states to restrict abortion is comparable to removing legal racial segregation has been widely contested. The contrast, however, emphasizes the conservative justices’ opinion that Roe is so faulty that they should forego their typical hesitations about reversing precedent and reject it fully.
In a footnote, Alito’s draft ruling goes even deeper into this racially charged region, noting that some early proponents of abortion rights also held ugly views on eugenics.
“Some such supporters have been motivated by a desire to suppress the size of the African American population,”,“It is beyond dispute that Roe has had that demographic effect. A highly disproportionate percentage of aborted fetuses are black.”Alito writes.
Alito claims that by bringing up the issue, he is not slamming anyone. “For our part, we do not question the motives of either those who support or those who oppose abortion restrictions,” he writes.
Alito also addressed concerns about the decision’s potential impact on public debate. “We cannot allow any outside influences, such as concern about the public’s reaction to our work, to influence our decisions,” Alito says. “We make no claims to understanding how our political system or society will react to today’s decision overturning Roe v. Wade.” Even if we knew what would happen ahead of time, we wouldn’t have the authority to allow that knowledge influence our decision.”
Despite condemnation from the public and the legal profession, Justices Sandra Day O’Connor, Anthony Kennedy, and Davis Souter warned that overruling Roe would cost the court a “terrible price” in their primary opinion in the 1992 Casey decision.
The three justices observed at the time that “while it has engendered disapproval, it has not been unworkable.” “An entire generation has grown up free to accept Roe’s concept of liberty in defining women’s ability to act in society and make reproductive decisions; no erosion of the principle of liberty or personal autonomy has left Roe’s central holding doctrinal remnant.”
Roberts seemed out of sync with the other conservative justices when Dobbs was argued in December, as he has in a number of cases, including one challenging the Affordable Care Act.
Roberts appeared to be looking for a way to sustain Mississippi’s 15-week ban without entirely rejecting the Roe framework during the argument session last autumn.
“Viability, it seems to me, doesn’t have anything to do with choice. But, if it really is an issue about choice, why is 15 weeks not enough time?”, “The thing that is at issue before us today is 15 weeks.”During the debates, Roberts inquired.
No constitutional right to abortion
While Alito’s draft opinion does not appear to accommodate much to Roberts’ viewpoints, elements of it appear to be tailored to the needs of other justices. One passage argues that social attitudes toward out-of-wedlock pregnancies “have changed drastically” since the 1970s and that increased demand for adoption makes abortion less necessary.
Those concerns are similar to those highlighted by Barrett, a Trump appointee and the court’s newest member, during the December arguments. She claims that regulations permitting people to surrender newborn kids with no questions asked mean that carrying a pregnancy to term isn’t a need for child rearing.
Barrett, who adopted two of her seven children, wondered, “Why don’t the safe haven laws take care of that problem?”
Much of Alito’s draft is devoted to arguing that the widespread criminalization of abortion during the nineteenth and early twentieth centuries refutes the idea that the Constitution implies a right to abortion.
A 31-page addendum documenting laws passed to prohibit abortion during that time period was included to the conservative justice’s text. “From the earliest days of the common law until 1973,” Alito claims, “an unbroken tradition of prohibiting abortion on pain of criminal punishment.”
“Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion.”Alito continues.
At the time, no state constitution recognized such a right,”
In his proposal, Alito argues that constitutionally protected rights that aren’t directly listed in the document — so-called unenumerated rights – must be deeply anchored in American history and tradition. This line of reasoning appears to be at conflict with a number of the court’s recent judgements, including ones that support LGBT rights.
Liberal justices are expected to disagree with Alito’s argument in the draft opinion that overturning Roe would not threaten other privacy-based rights recognized by the courts, such as the right to contraception, private consenting sexual behavior, and marriage to a person of the same sex.
“We emphasize that our decision pertains solely to the constitutional right to abortion,”,”Nothing in this opinion should be construed as casting doubt on precedents not related to abortion.”Alito writes.
The idea that abortion bans reflect women’s servitude in American culture is refuted in Alito’s draft opinion.
“Women are not without electoral or political power,” , “The percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so.”Justice Alito writes
The Supreme Court is one of Washington’s most secretive institutions, emphasizing the importance of keeping its interior discussions private.
“Those who know don’t talk at the Supreme Court, and those who talk don’t know,” Ginsburg used to say.
A series of publications by law clerks, law professors, and investigative journalists have helped to demolish that tight-lipped reputation in recent decades. Although several of these authors had access to draft opinions like the one obtained by POLITICO, their books didn’t come out until after the cases were concluded.
On Wednesday, the justices heard their concluding arguments of the current term. The court has scheduled a series of hearings over the next two months to issue rulings in several pending cases, including the Mississippi abortion case.