The Story: A leaked draft opinion signals that the Supreme Court is on the verge of overturning Roe v. Wade.
The Background: POLITICO reports they have received a copy of an initial draft majority opinion written by Justice Samuel Alito that has been circulated inside the Supreme Court and that strikes down Roe v. Wade. No draft decision in the modern history of the Court has been disclosed publicly while a case was still pending, notes POLITICO.
As the influential Court analysis site SCOTUSBlog says, “It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin.”
The draft opinion, which runs 98 pages, is for the case of Dobbs v. Jackson Women’s Health Organization, one of the most important pro-life case in decades. Alito’s draft of the majority opinion is a strong rebuke of Roe v. Wade, the landmark decision that made abortion legal in all 50 states.
Alito’s draft of the majority opinion is a strong rebuke of Roe v. Wade, the landmark decision that made abortion legal in all 50 states.
“We hold that Roe and Casey must be overruled,” writes Alito in the draft opinion. “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.”
What It Means: Here’s some of what we can reasonably infer from the leaked document.
The leaked draft does not mean the Court has decided to overrule Roe . . .
In deciding a case, the justices hold a preliminary vote shortly after hearing oral arguments. A member of the majority is then assigned to write a draft of the Court’s opinion. The draft can also be amended or changed based on the input of the other justices on the majority side.
However, as the United States Courts website points out, “On rare occasions in close cases, a dissenting opinion later becomes the majority opinion because one or more Justices switch their votes after reading the drafts of the majority and dissenting opinions. No opinion is considered the official opinion of the Court until it is delivered in open Court (or at least made available to the public).”
The opinion of the Court on the Dobbs case will not be final until the majority ruling is made public, which is likely to happen sometime before the end of June.
. . . But it sends a strong signal that a majority of the justices have decided to overturn Roe.
Those of us who oppose abortion should be cautious about relying too much on an unofficial draft that hasn’t been approved by the Court. Still, there are significant reasons to be optimistic about the outcome in this case. As POLITICO says—and as the document itself reveals—the draft is a “full-throated, unflinching repudiation of the 1973 decision.” Alito writes,
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.
Near the end of the draft opinion he adds,
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.
It’s unlikely that Justice Alito would write such a strongly worded opinion if he did not believe he had the backing of others on the majority side of the vote on Dobbs.
Chief Justice Roberts may have joined the majority decision but decided not to overturn Roe.
The most senior justice in the majority gets to assign the author of the opinion, whether to themselves or to another justice. The current order of seniority among the conservative justices is Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. As chief justice, John Roberts is considered the most senior, even though he has been on the Court for a shorter period of time than Justice Thomas.
If Justice Roberts had initially voted with the majority, he would likely have chosen to write the majority opinion himself. That matches what POLITICO found, that Thomas, Alito, Gorsuch, Kavanaugh and Barrett were the justices in the majority.
That would leave the choice to Justice Thomas—the only sitting justice to repudiate the Roe decision publicly. The fact that Alito’s name appears on the draft implies Thomas passed on the opportunity to write the opinion himself.
However, CNN also reports that “Roberts does NOT want to completely overturn Roe v Wade, meaning he apparently would be dissenting from Alito’s draft opinion, likely w[ith] the court’s 3 liberals. . . . Roberts is willing, however, to uphold MS law banning abortion at 15 weeks.”
The leak was likely done to influence the Court’s decision.
As law professor Jonathan Turley notes, “If this is a true copy of the draft opinion it is hard not to view this as a malicious act. What is the motivation of releasing such a decision? The only intent of such a leak is to trigger a response from outside of the Court.”
And as Jason Keith Allen, president of Midwestern Baptist Theological Seminary, says, “Few things would make me happier if this [court decision] proves true. But, mark it down: This [revelation] is an unprecedented leak to prompt leftist outrage & public mayhem in an attempt to cause justices to blink before the decision is formalized.”
The fight over abortion is about to get even more heated.
If the Court does overturn Roe, it will be one of the most significant acts of justice in modern history. But the ruling will bring only a change of direction, not an end, to the fight over abortion.
Some politicians are already gearing up for the next skirmish. “Congress must pass legislation that codifies Roe v. Wade as the law of the land in this country NOW,” Bernie Sanders wrote on Twitter. “And if there aren’t 60 votes in the Senate to do it, and there are not, we must end the filibuster to pass it with 50 votes.”
The ruling will bring only a change of direction, not an end, to the fight over abortion.
Legalized abortion may soon become an issue that changes based on who controls Congress—or the state legislature.
“In some States, voters may believe that the abortion right should be more [sic] even more extensive than the right Casey and Roe recognized,” Alito says in his draft opinion. “Voters in other States may wish to impose tight restrictions based on their belief that abortion destroys an ‘unborn human being.’ . . . Our nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.”
Currently, four states—Mississippi, Louisiana, North Dakota, and South Dakota—have “trigger laws” that will immediately ban abortion if Roe is overturned. On the opposite side, eight states already protect abortion in their constitutions (Alaska, California, Florida, Massachusetts, Minnesota, Montana, New Jersey, and New Mexico), while eight more (Connecticut, Delaware, Hawaii, Maine, Maryland, Nevada, Oregon, and Washington) protect abortion by state statutes.
None of this will be news to long-time pro-life activists. But there are many pro-life Christians—maybe even the majority—who think that overturning Roe will put us in the final stage of the culture war over abortion. Many pro-lifers would have only come to that realization the day after Roe was overturned. But thanks to the leaked draft, they’ll be given time to recognize and prepare for the next battle over abortion—a fight that begins today.