A leaked majority draft opinion written by Supreme Court Justice Samuel Alito suggests the highest court in the land has decided to strike down Roe v. Wade, the seminal 1973 precedent that federalized abortion policy, overriding the states and making the procedure lawful throughout the entire United States.
The gist of Alito’s draft opinion is that, in 1973, the Supreme Court arrogated to itself the power to impose a nationwide rule governing abortion, ignoring the principles of federalism which would leave the issue in the hands of the states, where it had traditionally resided. Instead, Alito contends, a results-oriented high court ignored longstanding tradition and practice and invented the right to abortion in a poorly reasoned court decision, fashioning it out of whole cloth, while at the same time pretending it hadn’t done so.
Politico published the purloined draft document—a 67-page opinion and a 31-page appendix—on the evening of May 2. The next day, the Supreme Court confirmed the authenticity of the draft, which is dated Feb. 10, but stressed that the document “does not represent a decision by the Court or the final position of any member on the issues in the case.”
Chief Justice John Roberts said in a statement that the leak “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.”
“To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed. The work of the Court will not be affected in any way,” Roberts said, adding that an investigation into the leak would be conducted.
The identity of the leaker is currently known only to Politico reporters, although speculation is rampant that a law clerk to a Supreme Court justice is the perpetrator. Any lawyer involved in the unprecedented leak may end up being disbarred.
The case is Dobbs v. Jackson Women’s Health Organization, court file 19-1392. The Supreme Court seemed generally open to the possibility of answering Mississippi’s call to scuttle Roe v. Wade during oral arguments on Dec. 1, 2021.
In the case, the only state-licensed abortion clinic in Mississippi is opposing 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 that the state statute was unconstitutional.
Roe v. Wade is “an egregiously wrong decision,” Mississippi Solicitor General Scott Stewart said during oral arguments.
“Roe v. Wade and Planned Parenthood v. Casey haunt our country,” Stewart said, referencing Roe’s companion ruling from 1992, which held that 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.”
Alito’s draft in Dobbs bears a resemblance to Stewart’s arguments, beginning:
“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.”
For the first 185 years after the U.S. Constitution was adopted, each state was free to address abortion “in accordance with the views of its citizens,” Alito wrote. Then, in 1973, Roe v. Wade was handed down by the Supreme Court, and even though the Constitution does not mention abortion, “the Court held that it confers a broad right to obtain one.” The court opinion “did not claim that American law or the common law had ever recognized such a right.”
Even abortion supporters have been hard-pressed to defend the legal reasoning found in Roe, Alito wrote. One high-profile constitutional scholar, John Hart Ely, wrote that he “would vote for a statute very much like the one the Court ended up drafting” had he been “a legislator,” but his assessment of Roe was that it was “not constitutional law” at all “and gave almost no sense of an obligation to try to be.”
When Roe was decided, 30 states still forbade abortion at all stages, but in the years leading up to the decision, around one-third of the states had liberalized their abortion laws. But Roe “abruptly ended that political process” and “imposed the same highly restrictive regime on the entire Nation” as it “effectively struck down the abortion laws of every single State,” Alito wrote.
Alito noted that Justice Byron White wrote in his dissenting opinion at the time that the court was out of line. Its decision represented the “exercise of raw judicial power,” sparking a national controversy that toxified the nation’s political culture for a half-century.
The Roe and Casey decisions “must be overruled” because the Constitution “makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment,” Alito wrote. Although that clause “has been held to guarantee some rights that are not mentioned in the Constitution,” any right protected by it must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty,” he wrote, citing the 1997 Washington v. Glucksberg decision.
“The right to abortion does not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law,” according to Alito. “Indeed, when the Fourteenth Amendment was adopted, three-quarters of the States made abortion a crime at all stages of pregnancy.”
Stare decisis, the doctrine of following existing legal precedents, is not a blank check, Alito wrote. The doctrine “does not compel unending adherence to Roe’s abuse of judicial authority.”
The Roe decision was “egregiously wrong from the start,” based on “exceptionally weak” reasoning that “has had damaging consequences,” he wrote.
“And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division,” Alito wrote.
“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” he wrote.
“The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting,” he wrote, quoting Justice Antonin Scalia’s opinion in Casey.
“That is what the Constitution and the rule of law demand.”
At press time, it was unclear when the final version of the Supreme Court’s opinion would be formally released by the court.