Alito’s Leaked Draft vs the Final Opinion
A comparison of the two texts.
POLITICO’s Kelly Hooper compares both versions to answer an admittedly esoteric question in the face of the evaporation of rather important civil liberty that had existed for almost half a century: “What changed from Justice Alito’s draft opinion to final ruling on Roe“?
The short answer: not much.
Despite fierce lobbying from outside forces to pull back from the precipice of overturning Roe, Alito’s writing contains all 10 key passages POLITICO identified in early May as the critical pieces of the abortion ruling.
The longer answer is that Alito added several passages directly responding to attacks on his ruling from dissenting and concurring Justices.
Roberts in his concurring opinion attempted to stake out a middle ground for the court, arguing that it didn’t need to end Roe in its entirety and instead could have upheld upheld Mississippi’s 15-week limit on abortion.
Alito in his final opinion takes issue with Robert’s reasoning — in which the chief justice supports leaving the constitutionality of tighter abortion restrictions to future cases — claiming there are “serious problems with this approach.”
Alito blasts Roberts for attempting to find a “middle way” in the contentious decision, which Alito claims will only “prolong” the “turmoil” of Roe. Alito argues that by only ruling that Mississippi’s 15-week law is constitutional, the high court would soon be called upon to decide the constitutionality of other states’ laws with shorter or longer deadlines for obtaining an abortion.
“The concurrence’s quest for a middle way would only put off the day when we would be forced to confront the question we now decide,” Alito writes. “The turmoil wrought by Roe and Casey would be prolonged. It is far better—for this Court and the country—to face up to the real issue without further delay.”
While I believe the basic tenet of Roe, as reaffirmed in Casey years later, that a woman’s right to control her body trumps those of the fetus before viability, should be considered “settled law” at this point, I actually agree with Alito on this narrow point. Since conservatives became a majority on the Court, they have allowed the precedent to be chipped away bit by bit, practically inviting states to continue pushing the envelope. In many states, the right to abortion was essentially fiction as the restrictions were so onerous that no doctors would provide abortions. It’s likely best to just admit that the Court does not see abortion as a real right than to continue that torturous process.
Alito also took aim at the argument Roberts laid out for giving people seeking an abortion a “reasonable opportunity” to obtain one, such as in Mississippi’s ban on abortion after 15 weeks of pregnancy. Alito said there are no constitutional grounds for upholding that rule, and that since Roberts made no claim that the right to an abortion is constitutional, his proposal to uphold the Mississippi limit would also not be supported by the Constitution.
“If the Constitution protects a woman’s right to obtain an abortion, the opinion does not explain why that right should end after the point at which all ‘reasonable’ women will have decided whether to seek an abortion,” Alito writes.
This, on the other hand, strikes me as pure sophistry. Surely, if there’s a right to an abortion, it’s meaningless if it evaporates before the woman knows she’s pregnant.
Alito’s final opinion also differs from the draft document because it adds a rebuttal to the three liberal justices’ dissent.
Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan delivered the scathing dissent that rebuked the court for upending the “balance” Roe had cemented for nearly 50 years between “respecting a woman as an autonomous being” and protecting the life of a fetus.
But Alito undermined the justices’ argument in his final opinion, claiming they failed to show that a constitutional right to abortion exists or identify any pre-Roe authority that supports the right.
The dissenters, like Roberts, are relying on stare decisis. Abortion is a right because Roe said it was a right and Casey and subsequent decisions reaffirmed that ruling.
Alito also shot down the dissenters’ argument that Roe could be defended on prior court precedent, since none of the precedents the case was based on “involved the destruction of what Roe called ‘potential life.'”
That abortion is sui generis is arguably true. The silver lining here, possibly, is that it draws a distinction that Justice Thomas does not that distinguishes the court-discovered right to abortion from other substantive due process rulings striking down sodomy laws and allowing same-sex marriage.
The justice also argued that “adherence to precedent is not ‘an inexorable command.'” He went on in his opinion to name instances in which the court did overrule prior precedents, such as overturning the “separate but equal” doctrine in both Brown v. Board of Education and Plessy v. Ferguson.
Again, that’s true insofar as it goes. The obvious counter, though, is that this is the first time longstanding precedent has been abandoned in order to take away rather than expand civil liberties.
The liberal justices highlighted in their dissent the potential fallout the decision could have, such as states using the newfound power to impose criminal penalties on abortion providers or people seeking abortions.
Alito slammed the justices on this point, claiming they have no “regard for a State’s interest in protecting prenatal life.” He said their implication in their dissent is clear — that the liberal justices believe the Constitution doesn’t permit states “to regard the destruction of a ‘potential life’ as a matter of any significance.”
He also took aim at the justices for their praising of the “balance” that a viability line for abortion can strike between a woman’s autonomous being and the state’s interest in protecting the life of a fetus. Alito instead argued that a viability line “makes no sense.”
“It was not adequately justified in Roe, and the dissent does not even try to defend it today,” Alito writes.
So, again, I believe Roe‘s trimester framework, later amended to a viability standard in Casey, amounted to legislating from the bench. But, to the extent those Courts were trying to balance the interest of the states in protecting the rights of the fetus and the privacy rights of women to control their own bodies, surely fetal viability makes more than a little sense as a test. An abortion at the point where the fetus, if delivered, could sustain itself outside the womb—and thus be a baby rather than a fetus—is manifestly a different thing than one in the very early weeks. Only extremists in the debate dispute this.
I cannot wrap my brain around the idea that anyone can tell a woman what she can’t and can’t do with her own body. This was a Christian religious decision and nothing more, and it should be called that.
Jews believe in a right, and expectation, of abortion, if a mother is in any way harmed, including mental harm. I can’t wait for all the religious liberty folks to try to tell Jews that their religious liberty isn’t valid.
And zero responsibility for men who impregnate women. Zero.
It gets better. A representative from Utah, Karianne Lisonbee, said that women should control “when men ejaculate inside them and to control that intake of semen.”
I wonder if, about a year from now, Roberts will be chiding Alito for this:
“Well, we certainly didn’t prolong any turmoil there, did we Sam?”
@EddieInCA: “I can’t wait for all the religious liberty folks to try to tell Jews that their religious liberty isn’t valid.”
Well, you can bet this supreme court is going to do just that if the Florida case makes it up to them. “Religious liberty” means “I get to do whatever I want, including whatever I want to you, and you can’t do shit about it because God.”
Like anyone of these scumbags believes in any power bigger than their own.
According to the CDC:
Similar to previous years, in 2019, women in their twenties accounted for the majority of abortions (56.9%). The majority of abortions in 2019 took place early in gestation: 92.7% of abortions were performed at ≤13 weeks’ gestation; a smaller number of abortions (6.2%) were performed at 14–20 weeks’ gestation, and even fewer (<1.0%) were performed at ≥21 weeks’ gestation.
So basically, the endless debate about viability is pointless. Very few abortions are being done when a fetus is even close to viability. (How many abortions are occurring past 14 weeks because of access is another story.) And the other abortions are for reasons that are almost 100% sound. I.e. for health. But there’s this fantasy of an uppity slutty woman 24 weeks pregnant just getting an abortion and that itself is the issue with abortion. Extremists and sluts, the two dread demons of America. That this event never happens and will not happens is of no importance to the people having the debate.
I’m a cis man and I should be allowed to debate abortion. But most of y’all? Shut the fuck up, please.
Pretty sure a premature infant isn’t going to sustain itself — whether you leave it in the woods, suburbs or city.
Even in Greek and Roman myths, where basically everyone who was anyone was abandoned at birth, they only survived to fulfill prophesy because of kind-hearted wolves, shepherds and the like.
Moses would not have faired well “sustaining himself” in a reed basket that washed up on the banks of a crocodile infested river. He would have sustained a crocodile.
While this might seem like an absurd twisting of your words the point is this: forcing someone to carry a fetus — whether from months 7 to 9 or 2 to 9 — is placing a burden upon them, their body and their health as surely as forcing them to raise the child.
And if you are requiring a woman to provide for this fetus — food, shelter, medical care — then you are implying that everyone is owed these things, regardless of income, as a human right, and that individuals may be compelled by the state to provide this assistance.
The wolf who raised Romulus and Remus had more rights over her body than a pregnant woman under your logic.
@Gustopher: I’m specifically rebutting Alito’s point that a viability standard makes no sense; it clearly does. Even the most abortion-friendly states and countries limit late term abortions to cases where the mother’s health would be seriously compromised.
It’s true that babies can’t sustain themselves even at full term. Hell, neither can three-year-olds. So?
@James Joyner: we don’t reach inside someone’s body when we ensure the viability of three year olds, nor do we force a specific individual to sacrifice their own health and welfare to do so.
That seems to be a pretty big distinction.
Analogous to requiring you to donate a kidney.
@CSK: @EddieInCA: I read an article wherein Paulina Porizkova (a supermodel (?) at the time I was in grad school–a guy I knew had a poster of her in his room) noted that in matters of sex, it’s important for women to know that they will always be expected to pick up the check. We’ve just codified this.
“I can’t wait for all the religious liberty folks to try to tell Jews that their religious liberty isn’t valid.”
IIRC, we covered in a comment yesterday that not all rabbis agree about what the Torah (and therefore, by extention, the Talmud) teaches about abortion. The religious liberty folks may well have their own panels of experts on Judaism. Fun times a comin’.
@wr: “Like anyone of these scumbags believes in any power bigger than their own.”
I think you’ve hit on the real problem here. The political science/governance questions are secondary to the philosophical/moral ones.
Nothing new about that. There are whole chapters of Matthew, Mark, Luke and John that are ignored when they become inconvenient.
I thought Alito would at least drop the witch guy from his opinion, but apparently even that survives. What’s the point to leaking the opinion to see how people will react, if you keep even the detail that made the draft a laughingstock?
@James Joyner: Trying to rephrase:
The position that the government can or should have that much control over you and your body is a pretty extreme position, but one which you don’t recognize because the government is never being used to control you that way. Fish don’t notice that they are wet, after all.
I’m not saying that it’s inherently wrong in all cases — I support mandatory vaccination, where the consequences to the average individual are minuscule compared to the public health benefit.
Typhoid Mary needed to be restricted, even if she did nothing to “deserve” it, just because she was infectious. Tuberculosis patients are a similar problem. It requires some very extreme state power over the individual, but we should be wary when we fail to realize how extreme that is.
But I’ve also lived most of my life knowing that the state was entirely willing to discriminate against me just for being garden variety queer, and entirely willing to let others discriminate against me for the same. Nothing like being forced to give birth, or the current efforts to criminalize getting trans kids the care they need, or what is likely coming for trans folks like Beth, but it wasn’t great. I’m incredibly wary of that level of state power and people who don’t recognize it as extreme.
This is going to sound snide, but I mean it with absolute sincerity — it must be nice not to have to worry about the power of the government being used against you, to control who you can bang, and what you do with your body, and how you live your private life. It really must be nice.
Yes, this is conservative Catholics and White Evangelicals ramming their religious bullshit down everyone’s throats. Same people behind MAGA and January 6th.
Three big things going on, IMO. 1) The retreat down the IQ ladder of religion. Intellectual and cultural elites are secular. Denominational membership is down. Christianity is in retreat and rapidly aging and they are desperately lashing out. 2) Men lack a specific definition, a defined role in modern society. This fuels the gun nuts, a group that overlaps heavily with White Evangelicals. 3) White privilege is being acknowledged and weakened.
Christians, men and Whites are all losing ground, all losing positions of privilege in society. And now this is the backlash. This is them trying to snatch victory from the jaws of defeat. It’s been building for a long time, gained ground with Trump, then lost that ground again. Now they own the Supremes and that institution has become their tool of counter-revolution.
The question I have is how the hell so few people saw this coming? People don’t like being knocked off their pedestals and sooner or later they’ll push back. We (and I include myself in years past) did a lot of unseemly dancing on their collective graves. That’s not the reason for the backlash, but it does make it harder for our side to adjust and respond. And the Left misdiagnosed the threat which was never solely about race. Obama-Obergefell gave Liberals a chance for a premature victory lap. We thought we’d won for all time.
We have the numbers, we have the education and the money, and we’re getting our asses kicked by morons and thugs. The Left needs to stop making excuses, stop forming into the usual circular firing squad, stop listening to the Twitter peanut gallery of cranks, and figure out how to win.
It’s an unfortunate echo of the Civil War. The North had all the most relevant assets – numbers of men, industrial output, infrastructure – and it took us four years to get serious and take the enemy down.
What’s the point in ruling arbitrarily if people don’t know how arbitrary it is and how powerless they are to even make you come up with a rational justification?
It’s all about “owning the libs.”
@Just nutha ignint cracker:
Some of the frustrating aspects of American politics:
What wins re/election often does not work as a path to good governance. In some cases it impedes governing.
Moral debates often do not encourage reason. On the the contrary, they actively avoid it in many cases. But it is exceedingly easy to splash some cheap paint on an argument to make it appear to be the result of careful reasoning.
And if that fails, reason takes a back seat, because moral questions are a priori.
Incentivizing moral grandstanding as opposed to negotiation through dialogue may be good electoral strategy, but it is anathema to
democracyrepublicanism, which by definition requires some democratic features.
I think it’s worth noting that Alito does something strikingly similar to the GOP strategy post-2020 wrt voting rights. Pols cast doubt on election security via argument-by-assertion. Then claim they must pass legislation to restore faith in the electoral system, even though they caused the doubt with weightless claims directly refuted by evidence.
Here, Alito decries the contentiousness even though the source of rancor was . . . Alito and his ideological family. Not to mention that the ruling itself is hardly going to promote civility, because it directly and pointedly criticizes seeking a balance.
25 years ago, Bob Dylan released a great song. The refrain:
It’s not dark yet
But it’s getting there
As dark as 2006-2008, 2016, and the pandemic felt…
@Michael Reynolds: The single stupidest take I have seen over Dobbs on Twitter is that abortion isn’t just a women’s issue, it’s also a trans-man’s issue because they can get pregnant too.
Some people should learn to shut up more often. It’s not exactly wrong, but it’s not leading with the strongest argument, and is broadening that affected group by roughly 12 people (probably an underestimate, granted), while triggering the normies.
Abortion affects men far more because men are on the hook for 18 years of child support, than that there are a handful of pregnant men.
And I’m very disappointed that the Democrats didn’t respond to this decision by rolling out legislation to codify Roe and Casey, but weaker than the previous legislation that failed, to take away the “well, I’m pro-choice but not that pro-choice” arguments that the previous bill got. Or something. They’ve had a month or so to get ready.
(I favor a more expansive abortion right than that, but am willing to accept a partial victory for the moment, and even this is unlikely to pass without dismantling the filibuster… but try… just try)
Comments at conservative sites are certainly about owning the libs. And in this, and the NY gun decision, Alito and Thomas’ tone can’t be read otherwise. Not what I’d describe as judicious.
Adding a cultural note, I’ve often speculated that you can witness the decline of men in the devolution of action heroes. John Wayne to Clint Eastwood to Arnold Schwarzenegger to the player in a first person shooter game. Each new iteration is less nuanced than the one before, less complete as a character. Each new iteration is less principled, less moral than the one before.
Now Hollywood is taking previously-iconic male characters and either deconstructing them into irrelevancy or subordinating them to female characters in a sort of crude parody of the dethroning of men. And then wondering why there’s a backlash. Men feel that they can’t cling even to their fantasies. This is stupid at several levels, and on both sides, but is mostly down to unskilled writing driven more by a performative agenda – first X to. . . – than by story or legitimate character-building.
What happens next is the backlash will be seen as having caused the failure of various female-forward movies and TV shows, and eventually Hollywood will follow the money. None of which had to happen when a bit of a lighter hand, a bit more thought and skill would have defanged the backlash. No ‘toxic male’ ever hated Ripley. No racist ever got worked up over Nick Fury. A little more subtlety, a little more skill, less posturing more character-building.
With my wife I created one of the earliest and eventually most iconic ‘strong female characters.’ She was tough, she was violent, she grew to enjoy the violence, but she was also a fully-developed character not something grown in a petri dish to fill a hole. Never had even the slightest pushback because a girl was the toughest one in the group. Boys loved the character. Girls loved the character.
On my own I wrote a bunch of ‘strong female characters’ and have gotten zero pushback. In one trilogy I put women at the front lines in WW2 alongside men and you know how many people ever objected because wimmin? Not one.
Creatives on the Left (which is about 95% of us) need to dial back the triumphalism and do the hard work of telling stories and making movies and TV shows where women don’t have to be men to be strong. That’s the position to take in the coming backlash.
Can’t be that easy. Neither Alito nor Thomas have managed to do it.
And yes, most people bring a priori, normative, beliefs to any moral argument. You’re right. Once Alito says he believes God implants a soul at conception and I say I do not, productive argumentation is impossible. Hell, sixty years ago when as a child I sort of accepted Lutheranism they didn’t believe that. But the real BS starts because Alito can’t say what he believes so he has to write pages of nonsense trying to arm wave his way around his dishonest argument.
I agree. But you’re not his audience.
Have you seen a John Wayne movie other than the Shootist? There’s not a lot there — certainly no nuance or character, and seldom any moral core. There’s just no there there. John Wayne movies are simplistic set pieces where the bad guys are bad guys because the good guys said so. Black hats and white hats. There’s no principle here, just “injuns bad” level stuff.
Eastwood has his flaws, but he also has The Outlaw Josey Wales, Bronco Billy and Unforgiven. He tends to do flawed heroes, who actually make moral choices.
Schwarzenegger tends to have kindness at the core of the heroes he portrays.
I think your theory is bunk, at least so far as any idolization of John Wayne or the characters he played goes.
@Gustopher: Fair enough. But elective abortion late in pregnancy is almost universally declaimed. Even the most ardent abortion advocacy groups don’t go that far. Rather, they argue that late-term abortions are rare and almost always happen because the mother’s life is in grave danger or the pregnancy is doomed. When the anti-abortion crowd emphasizes late-term abortion, the abortion rights crowd invariably pushes back with statistics about almost all abortions being in the first trimester.
Wayne made a shit-ton of movies, many of which were indeed stinkers. But classics like Stagecoach, The Quiet Man, True Grit, The Longest Day, The Cowboys, the cavalry trilogy, and so many more are definitely about characters with a moral core and often some deep internal conflict. A lot of fairly simplistic by today’s standards, to be sure, but there was an expectation that the movies be appropriate for everyone from the little kids to grandma.
I see James beat me to it. You’re completely wrong about John Wayne. I’ll add The Man Who Shot Liberty Valance as another which had a great deal to do with old-fashioned, ‘John Wayne’ virtues.
It’s been a steady move from repressed emotion to no emotion at all, from reluctant killing to killing as a sport. The notions of duty or honor have disappeared. And the idea that kindness is some sort of Schwarzenegger thing is nonsense. Conan, Raw Deal, Commando, Terminator, Predator. Absolutely Arnold added a comic persona later, but in general he’s a roided up killing machine. In fact some in his most popular movies he is literally a machine who kills.
The absolute refusal of otherwise sensible like you to come to terms with the genuine problems of men in the modern world is baffling.
That is a variation on the “appeal to authority” logical fallacy. Just because a lot of people believe something does not make it so.
Then again, if abortions are readily available pre-viability, post viability abortions are rare and generally involve either fetal abnormality or maternal health jeopardy, so not much to be gained by restricting them.
So I say people are almost universally full of shit.
Wow, I really don’t agree with this take. I will take Mando, the title character of The Mandolorean over pretty much any John Wayne character, with the possible exception of Rooster Cogburn. For instance. No devolution that I can see.
I will take Steve Rogers and Tony Stark, too. Very different men, both interesting characters. No devolution. (I think it’s fair to compare John Wayne and Arnold to them, right?)
The current male action hero, to me, is much more interesting and fully-fleshed.
I don’t think John Wayne movies are the answer. Even if they weren’t a wooden portrayal of simplistic stories (I’ve seen a lot of John Wayne movies — my father loves them, so I was exposed as a kid, and every time I visit he pulls out on of the “good” ones in some perverse effort to make me like them, or stop visiting), they aren’t even relevant.
The portrayal of manhood in them just doesn’t work in modern society. It probably never worked.
And how are we doing with the current notion of manhood? Duty, patriotism, modesty and honor should not be outdated concepts.
@Michael Reynolds: Which ones do you think John Wayne showed?
Duty, jingoism, bravado, and more bravado. With a side of sexism, and a gentle sprinkling of racism.
Ronald Reagan’s classic Bedtime for Bonzo has more to say about manhood than anything John Wayne does.
Boys are lost, unsure of what being a man is, but a new John Wayne isn’t the answer. (Sadly, some are looking to things like Jordan Peterson, which is worse but feels more relevant by not being such obvious bullshit)
(I am curious about an alternate history where Clint Eastwood became president, and Republicans decided that the key to electoral victory was actors starring with apes, and Mitt Romney getting a monkey of some sort)
Dude, I was not suggesting John Wayne movies as a cure, just remarking on how they depict the decline of the action hero from principled, brave, and duty-bound (The Man Who Shot Liberty Valance, She Wore a Yellow Ribbon, Fort Apache, Rio Bravo, Sands of Iwo Jima) to the greed, amorality and unrestrained violence of Clint Eastwood, Charles Bronson, and later, Schwarzenegger and first person shooter games.
@Michael Reynolds: I really don’t think John Wayne is better. It’s the weak part of your claim.
@Michael Reynolds: Actually, I’m going to reject the main thesis as well — learning who to shoot when, and for what reasons isn’t really what manhood is about.
We have lost the man’s unique role a bit, when we let women into the workforce and let women have access to birth control, and some boys are adrift, but the ones who then want to cling to guns and the most toxic traits of masculinity are the problem.
Reaching back to John Wayne simplistic archetypes does more harm than good. “Don’t apologize, it’s a sign of weakness” is just stupid.
(You’re also cherry picking the past, and the further back you go, the more of the past there is to cherry pick from)
We need better stories that give better aspirational models for some of these adrift kids, and give them a way forward, rather than just looking back at an era where might makes right and women were prizes to be won.
But mostly I say: get to it, story-boy, be the change you want to see in the world. Perhaps you stepped out if kidlit too soon, or you need to try something at a very slightly older age range to avoid the kidlit politics, but draw in parts of the audience. Mold the children.
(Aside: I’m wondering how American History X holds up these days when Nazis are far more prevalent.)
@Michael Reynolds: I think you are referring to a trend to antiheros. In comics this is known as “The Iron Age”, and it was launched by Frank Miller’s The Dark Knight.
And yeah, I hate that stuff. But that’s not where we are now. We just had a major arc with Captain America, and it was unironic. Mostly.
By the way the film of “Dudley Doright” lampooned this oh, so well.