By Terrance Turner
May 2, 2022
The Supreme Court will vote to strike down the landmark 1973 case of Roe v. Wade, according to an initial draft of a majority opinion written by Justice Samuel Alito that has been circulated inside the court and obtained by POLITICO.
POLITICO received a copy of the draft opinion from a person familiar with the court’s proceedings in a Mississippi abortion case, along with other details supporting the authenticity of the document. (The Mississippi case concerns a state law mandating that no one may perform an abortion after 15 weeks of pregnancy, unless there is a medical emergency or a fetal abnormality.) The draft opinion runs 98 pages, including a 31-page appendix, and the document, labeled as a first draft of the majority opinion, includes a notation that it was circulated among the justices on Feb. 10.
Alito’s majority opinion begins with a lengthy look at views on the issue: “Abortion presents a profound moral issue on which American 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 form achieving full equality. Still others in a third group think that abortion should be allowed under some but not all circumstances,” Alito writes.
He goes on to outline how when Roe was decided, 30 states still outlawed abortion at all stages — a state of affairs halted entirely by Roe, which ensured a woman’s right to terminate a pregnancy in the first trimester. In Planned Parenthood of Southeastern Pa. v. Casey (1992), he writes, the Court split three ways: two justices wanted no change, four wanted it overturned, and three held that Roe’s central premise must be adhered to. Alito dismantles those decision in his opinion:
“We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision. Including the one of which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and implicit in the concept of ordered liberty” […] The right to abortion does not fall within this category.”
Alito goes even further in further passages.
“Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
He quoted the late Justice Antonin Scalia’s opinion from Casey: “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 each other and then voting.” Alito added: “That is what the Constitution and the rule of law demand.”
“We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision. We can only do our job, which is to interpret the law, apply longstanding principles of stare decisis, and decide this case accordingly. We therefore hold that the Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.”
UPDATE (11:12 PM): Protesters have gathered outside the Supreme Court in protest of the potential ruling. According to Axios, “Pro-abortion rights demonstrators rallied outside the U.S. Supreme Court on Monday night after a leaked draft document first published by Politico indicated the justices were preparing to overturn Roe v. Wade.”
About 200 protesters were gathered in front of barricades at the court in Washington, D.C., chanting “abortion is health care,” Axios’ Julia Shapero reports from the scene. Court police have reportedly erected barricades, according to NBC News affiliates.
Axios cannot verify the document, reportedly authored by Justice Samuel Alito in February. (Politico reported that Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett voted with Alito. Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented.) If it is real — if a ban on abortion passes — it will become illegal in 13 states, including Texas. Oklahoma, Louisiana, and Mississippi are also among the states.
UPDATE (May 3, 2022): The Supreme Court and Politico have confirmed the authenticity of the draft opinion that sent shockwaves through the country last night. According to the New York Times, the top brass at Politico sent an email asserting their confidence that the document is authentic. “After an extensive review process, we are confident of the authenticity of the draft,” Politico’s editor in chief, Matthew Kaminski, and its executive editor, Dafna Linzer, wrote. “This unprecedented view into the justices’ deliberations is plainly news of great public interest.”
The editors did not explain what that review process entailed, or how the lead reporters on the story, Josh Gerstein and Alexander Ward, had obtained the draft. Last night’s article said that the person who provided the doument had provided additional details to authenticate it, but it did not elaborate on what they were. Mr. Kaminski declined to comment further. “We’re going to let the story and our staff note speak for themselves,” he said.
Meanwhile, the Court has also confirmed the draft’s authenticity. The Supreme Court said in a release, “Justices circulate draft opinions internally as a routine and essential part of the Court’s confidential deliberative work. Although the document described in yesterday’s reports is authentic, it does not represent a decision by the Court or the final position of any member on the issues in this case.”
Chief Justice John Roberts: “We at the Court are blessed to have a workforce — permanent employees and law clerks alike — intensely loyal to the institution and dedicated to the rule of law. Court employees have an exemplary and important tradition of respecting the confidentiality of the judicial process and upholding the trust of the Court. 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 chief justice said he had “directed the Marshal of the Court to launch an investigation into the source of the leak,” per Yahoo! News. (Sen. Minority Leader Mitch McConnell has called for a criminal investigation.)
While some Republicans are expressing outrage over the leak, Democrats are expressing concern over the implications of the law itself. Senator Bob Casey (D-Penn.), who has opposed abortion rights in the past, said in a statement that, if the draft becomes final, he had “serious concerns about what overturning almost 50 years of legal precedent will mean for women in states passing near or total bans on abortion.” House Speaker Nancy Pelosi blasted the ruling for ““brazenly ignoring 50 years of its own precedent, the United States Constitution and the will of the American people” in a statement.
“Opponents of Roe want to punish women,” said Vice President Kamala Harris. “The rights of all Americans are at risk,” she added. “If the right to privacy is weakened, every person could face a future in which the government can potentially interfere in the personal decisions you make about your life. This is the time to fight for women and for our country with everything we have.”
President Joe Biden weighed in on the matter before leaving for a flight to Alabama today. “It concerns me a great deal that we’re gonna have to — after 50 years — decide that a woman doesn’t have the right to choose,” Biden told reporters. “But even more, equally as profound, is the rational used. It would mean that every other decision regarding the notion to privacy is thrown into question.”
“One of the debates that I had with Robert Bork was whether Griswold vs. Connecticut should stand as law. The state of Connecticut said that, in the privacy of your bedroom, a husband and wife, or a couple, could not choose to use contraception,” Biden said. “The use of contraception was a violation of the law. If the rationale of the decision as released were to be sustained, a whole range of rights are in question.” He added that “if it becomes the law and if what is written is what remains, it goes far beyond the concern of whether or not there is the right to choose. It goes to other basic rights: the right to marriage, the right to detrmine a whole range of things.”