A newly published majority draft opinion penned by Supreme Court Justice Samuel Alito suggests the nation’s top court has decided to strike down Roe v. Wade, the seminal precedent that in 1973 wrested the regulation of abortion from the states and made the procedure lawful throughout the entire United States.
The 67-page opinion, along with a 31-page appendix, was published on May 2 by Politico.
“Roe was egregiously wrong from the start,” Alito states in the document.
“We hold that Roe and Casey must be overruled,” Alito writes in the document, which is 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.”
The draft begins: “Abortion presents a profound moral issue on which Americans hold sharply conflicting views. Some believe fervently that a human person comes into being at conception and that abortion ends an innocent life. Others feel just as strongly that any regulation of abortion invades a woman’s right to control her own body and prevents women from achieving full equality. Still others in a third group think that abortions should be allowed under some but not all circumstances, and those within this group hold a variety of views about the particular restrictions that should be imposed.”
Politico said it received a copy of the draft opinion from a person familiar with the court’s proceedings in a pending challenge to a Mississippi abortion law, along with other details supporting the authenticity of the document.
The Supreme Court later confirmed the authenticity of the document but said the leak was a betrayal and will be investigated. The court also said the draft does not represent a decision by the court “or the final position of any member on the issues in the case.”
Justices often change their minds in deliberations as they attempt to win over other members of the court to their point of view.
The circulation of the document constitutes an unprecedented breach of Supreme Court protocol.
Harvard Law professor emeritus Alan Dershowitz, who said he opposes Roe being reversed, told Fox News he couldn’t recall a Supreme Court opinion ever being leaked to the media.
“I have a theory, and it’s only a theory. I think this was leaked by a liberal law clerk who was trying to change the outcome of the case, either by putting pressure on some of the justices to change their mind, or by getting Congress to pack the court even before June, which is very unlikely, or to get Congress to pass a national right-to-abortion law, which would apply to all the states,” Dershowitz said.
The influential SCOTUSblog website weighed in on Twitter, writing on May 2 at 9:07 p.m.: “It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among Justices and staff. This leak is the gravest, most unforgivable sin.”
The draft opinion is on the case of Dobbs v. Jackson Women’s Health Organization, court file 19-1392, a challenge by the only state-licensed abortion clinic in Mississippi to the state’s Gestational Age Act, which allows abortions after 15 weeks’ gestation only for medical emergencies or severe fetal abnormality. Citing Roe, lower courts held the state statute was unconstitutional.
As The Epoch Times reported five months ago, during oral arguments Dec. 1, 2021, the Supreme Court seemed generally open to the possibility of answering Mississippi’s call to scuttle Roe v. Wade.
Roe v. Wade is “an egregiously wrong decision,” Mississippi Solicitor General Scott Stewart said during oral arguments, appearing to foreshadow Alito’s words in the draft document.
“Roe v. Wade and Planned Parenthood v. Casey haunt our country,” Stewart said, referencing Roe’s companion ruling from 1992, which held states can’t impose significant restrictions on abortion before a fetus becomes viable for life outside the womb, somewhere around the 24-week gestation mark.
“They have no basis in the Constitution. They have no home in our history or traditions. They’ve damaged the democratic process. They’ve poisoned the law. They’ve choked off compromise. For 50 years, they’ve kept this court at the center of a political battle that it can never resolve. And 50 years on, they stand alone. Nowhere else does this court recognize a right to end a human life.”
The Dobbs case is the first direct challenge to Roe in the high court since Justice Amy Coney Barrett’s appointment on Oct. 26, 2020, gave the court’s nominally conservative wing a 6–3 majority. Some conservative court observers argue the conservative-to-liberal split is more like 5-4 because they consider Chief Justice John Roberts to be a moderate or even a liberal because he frequently sides with liberal justices when the court seems on the verge of overturning a precedent disliked by conservatives. Barrett replaced the late Justice Ruth Bader Ginsburg, who died the previous Sept. 18.
Ginsburg was a defender of abortion but she spoke out about the problems she saw with the Roe decision. For example, at a May 11, 2013 appearance at University of Chicago Law School, she said her “criticism of Roe is that it seemed to have stopped the momentum on the side of change.” It would have been better if abortion rights had been brought about more gradually, preferably in a process that included state legislatures and courts, she said. “Roe isn’t really about the woman’s choice, is it?” Ginsburg said. “It’s about the doctor’s freedom to practice…it wasn’t woman-centered, it was physician-centered.”