Supreme Court Overturning Roe (Probably)
POLITICO has obtained what purports to be the 1st draft of the opinion.
POLITICO, “Supreme Court has voted to overturn abortion rights, draft opinion shows“
The Supreme Court has voted to strike down the landmark Roe v. Wade decision, according to an initial draft majority opinion written by Justice Samuel Alito circulated inside the court and obtained by POLITICO.
The draft opinion is a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision - Planned Parenthood v. Casey - that largely maintained the right. “Roe was egregiously wrong from the start,” Alito writes.
“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.”
The opinion is clearly marked “1st Draft,” so is not final. The report acknowledges this:
Deliberations on controversial cases have in the past been fluid. Justices can and sometimes do change their votes as draft opinions circulate and major decisions can be subject to multiple drafts and vote-trading, sometimes until just days before a decision is unveiled. The court’s holding will not be final until it is published, likely in the next two months.
Still, as written, it achieves what conservatives have been clamoring for since at least the 1980 election: a complete repudiation of Roe and a return of the matter to the several states.
The immediate impact of the ruling as drafted in February would be to end a half-century guarantee of federal constitutional protection of abortion rights and allow each state to decide whether to restrict or ban abortion. It’s unclear if there have been subsequent changes to the draft.
No draft decision in the modern history of the court has been disclosed publicly while a case was still pending. The unprecedented revelation is bound to intensify the debate over what was already the most controversial case on the docket this term.
The draft opinion offers an extraordinary window into the justices’ deliberations in one of the most consequential cases before the court in the last five decades. Some court-watchers predicted that the conservative majority would slice away at abortion rights without flatly overturning a 49-year-old precedent. The draft shows that the court is looking to reject Roe‘s logic and legal protections.
The initial vote was reportedly 5-4:
The three Democratic-appointed justices – Stephen Breyer, Sonia Sotomayor and Elena Kagan – are working on one or more dissents, according to the person. How Chief Justice John Roberts will ultimately vote, and whether he will join an already written opinion or draft his own, is unclear.
Alito follows the conservative line, with which I agree, that Roe was an incredibly poorly written decision and that it only survived in Casey because conservative Justices who agreed that Roe was wrong believed deference to precedent and the public’s faith in the Court demanded that the core policy be upheld even though the reasoning was all but abandoned.
Roe‘s “survey of history ranged from the constitutionally irrelevant to the plainly incorrect,” Alito continues, adding that its reasoning was “exceptionally weak,” and that the original decision has had “damaging consequences.”
“The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions,” Alito writes.
Alito approvingly quotes a broad range of critics of the Roe decision. He also points to liberal icons such as the late Justice Ruth Bader Ginsburg and Harvard Law Professor Laurence Tribe, who at certain points in their careers took issue with the reasoning in Roe or its impact on the political process.
Alito’s skewering of Roe and the endorsement of at least four other justices for that unsparing critique is also a measure of the court’s rightward turn in recent decades. Roe was decided 7-2 in 1973, with five Republican appointees joining two justices nominated by Democratic presidents.
For the record, I agree with the conservatives in Casey—even more so in 2022 than in 1992. Roe rested on an equally flimsy 1965 decision, Griswold v Connecticut, that invented a right of privacy out of whole cloth. While there is plenty of precedent for overthrowing decades-old decisions (Brown‘s 1954 overruling of the “separate but equal” doctrine established in 1896’s Plessy v Ferguson is the most obvious example) I can’t think of one where the result was the abandonment of rights. Brown moved us in the direction of personal freedom whereas this ruling (Dobbs) takes away a freedom, however controversial, established half a century earlier.
While I am by no means a legal scholar, I have been deeply interested in Constitutional interpretation going back four decades. I read Bob Woodward’s The Brethren while still in high school and was fascinated by the machinations that went into the process of crafting decisions. One thing that stood out to me, in particular, was Chief Justice Warren Burger’s shrewdness in exercising his prerogative to assign opinions. Because he voted last, he would often shift sides, voting with the majority, in order to have the opinion written more narrowly.
In that light, I’m frankly surprised that Roberts allowed Alito to write this decision. If the Court is going to overturn Roe, it would be far better for the ruling to be 6-3 rather than 5-4 and, especially, to be less triumphalist. This will be the most controversial decision since Roe—arguably, since Brown. Why have it be a victory lap rather than a conciliatory acknowledgment that having this issue constantly litigated hasn’t worked?
As an interesting side note, a Washington Post report observes “The original Roe v. Wade decision also was leaked to the press.”
The apparent leak to Politico of an initial draft of a Supreme Court opinion overruling Roe v. Wade and Planned Parenthood v. Casey has been greeted with astonishment about not only the sweep of the ruling but also the fact that a draft opinion was leaked at all. Some commentators claimed that this was unprecedented in the history of the Supreme Court.
Neal Katyal, the former acting solicitor general, tweeted that if the Politico story is true, this is “the first major leak from the Supreme Court ever.” He called it the equivalent of the Pentagon Papers.
While it may be the case, as Politico states, that “no draft decision in the modern history of the court has been disclosed publicly while a case was still pending,” it is not true that rulings have never been given to journalists before the announcement of the decision by the court. In fact, the result in Roe v. Wade itself was leaked by a Supreme Court clerk to a Time magazine reporter in January 1973. The issue of Time, with an article titled “The Sexes: Abortion on Demand,” appeared on newsstands hours before the decision was announced by Justice Harry Blackmun.
The Supreme Court clerk who leaked the story, Larry Hammond, told me about it when I interviewed him for my book “January 1973: Watergate, Roe v. Wade, Vietnam, and the Month That Changed America Forever.”
Hammond clerked for Justice Lewis Powell and played an important role in convincing Powell that the “viability” standard (when a fetus could live outside the womb) was the most supportable line to draw in determining when a state may not regulate a woman’s right to an abortion. Powell privately convinced Justice Harry A. Blackmun and ultimately a 7-to-2 majority to adopt the viability standard, and that has been at the heart of Roe and later Casey, which now appear to be on the verge of being reversed.
A HuffPost story predicts “Where Abortion Will Likely Be Illegal If SCOTUS Overturns Roe.” Or, at least, transcribes a prediction:
The Guttmacher Institute, a research organization focused on advancing reproductive health policy, has identified 26 states that are likely or almost certain to ban abortion in the case of a Supreme Court decision overturning Roe, which established in 1973 that states could not place excessive burdens on patients seeking the procedure.
“If this opinion truly is reflective of the final decision of the majority of the U.S. Supreme Court Justices … we are just days away from more than 26 states banning access to abortion services, essential and safe health care that has been a constitutional right for nearly 50 years,” Jodi Hicks, president and CEO of Planned Parenthood Affiliates of California, said in a statement.
Twenty-two states already have laws or constitutional amendments in place that would allow them to ban abortion as soon as the Supreme Court makes it possible. The latest state to join those ranks is Wyoming, which passed such a law in March.
None on the list will come as a surprise. Not mentioned in the piece: it’s really hard, if not next to impossible, to get an abortion in those states now.
Finally, as often noted in the comments section here, simply reversing Roe will not be enough for many anti-abortion activists. As another Washington Post report has it, “The next frontier for the antiabortion movement: A nationwide ban.”
Leading antiabortion groups and their allies in Congress have been meeting behind the scenes to plan a national strategy that would kick in if the Supreme Court rolls back abortion rights this summer, including a push for a strict nationwide ban on the procedure if Republicans retake power in Washington.
The effort, activists say, is designed to bringa fight that has been playing out largely in the courts and state legislatures to the national political stage — rallying conservatives around the issue in the midterms and pressuring potential 2024 GOP presidential candidates to take a stand.
The discussions reflect what activists describe as an emerging consensus in some corners of the antiabortion movement to push for hard-line measures that will truly end a practice they see as murder while rejecting any proposals seen as half-measures.
The report declares that achieving this goal would require getting 60 votes in the Senate but it’s much more likely that a majority bent on doing this would simply rid us of the filibuster. More importantly, it would require a Presidential signature and, thus, a Republican President.
Politically, this would be an incredibly dumb move. It’s one thing to ban abortion in Red states, where it’s nominally the will of the majority. Trying to do so nationwide would surely be even more mobilizing than the prospect of another Trump presidency.