The Supreme Court’s leaked draft opinion could overturn Roe v. Wade: What this means
Justice Samuel Alito’s draft opinion overturning the Supreme Court decision establishing the right to abortion spells huge consequences for politics, the law and public health.
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A majority of Supreme Court justices led by Justice Samuel Alito has endorsed ending the national right to an abortion, Politico reported on Monday evening, publishing Alito’s majority opinion draft from February in full.
The draft, as written, would overturn the 1973 ruling that created the right to abortion, Roe v. Wade, and another landmark reproductive health case, Planned Parenthood of Southeastern Pennsylvania v. Casey.
“Roe was egregiously wrong from the start,” Alito wrote. Addressing Roe directly, he wrote, “it held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned.” Examining the issue anew, he wrote that “the Fourteenth Amendment does not protect the right to an abortion.”
Chief Justice John Roberts, per Politico’s reporting, was the only Republican appointee who did not vote with the majority. Roberts confirmed the veracity of the document on Tuesday in announcing an investigation into the leak.
The official ruling is expected by the end of June. Twenty-two states have laws or constitutional amendments that restrict abortions ready to take effect if Roe falls.
The leak of the draft opinion is an extraordinary moment. Though the leaker is unknown, the nearly unprecedented move speaks to the stakes of the case for both sides of the abortion debate. Since the court tipped to a conservative majority in 2018, legal experts have expected Roe v. Wade to be at least curtailed. The leaked opinion shows the court is headed in the most aggressive direction possible. If the opinion is handed down as written, the court will have eliminated a legal framework that has been in place for 50 years and replaced it with one that sets the stage for significant battles over enforcement of new abortion laws, the right to privacy around reproductive health and beyond.
Alito: “Roe was egregiously wrong from the start”
The leaked draft offers a rare window into the inner workings of the Supreme Court and a preview of a decision about the future of Roe.
After a case is argued before the court, the justices take a private, initial vote. Traditionally, the most senior justice in the majority — here, per Politico’s reporting, Justice Clarence Thomas — chooses which justice in the majority will draft the court’s opinion. Alito ultimately crafted the majority opinion that circulated inside the court in early February. Drafts can change during the time between when an initial vote is taken and when a decision is released.
Alito’s draft opinion addresses how the court has resolved questions about rights explicitly named in the Constitution or Bill of Rights — referred to as “enumerated rights” — and those not named explicitly — referred to as “unenumerated rights.” Under the legal philosophy that supported Roe, unenumerated rights could be found more easily — in the “penumbras” of enumerated rights. Since that time, however, the court has pulled back on when it will recognize unenumerated rights — holding that they must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”
Abortion, not named in the Constitution, has been protected since Roe as one of those unenumerated rights. Alito wrote in the draft decision that this was “egregiously” wrong.
“Our Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated,” he wrote.
The implications of this change are profound, which Alito acknowledged. He explained that abortion restrictions will be assumed constitutional if challenged, making it far easier for states to enact laws that limit access to the procedure. States would need only to show “rational basis” for believing the law would advance “legitimate” governmental interests, a far lower standard than set forth under Roe.
As to the Mississippi law before the court in Dobbs v. Jackson Women’s Health Organization, Alito wrote, “legitimate interests justify Mississippi’s Gestational Age Act.”
The Supreme Court typically adheres to its past decisions when it hears new cases, called stare decisis. In this instance, Alito said stare decisis need not apply.
“We have long recognized, however, that stare decisis is ‘not an inexorable command,’ and it ‘is at its weakest when we interpret the Constitution.’ It has been said that it is sometimes more important that an issue ‘be settled than that it be settled right.’ But when it comes to the interpretation of the Constitution — the ‘great charter of our liberties,’ which was meant ‘to endure through a long lapse of ages,’ we place a high value on having the matter ‘settled right,’” Alito wrote.
Alito also wrote that people have not relied on Roe and Casey in the way that the court has generally protected what it calls “reliance interests.” Although the court protects the financial reliance that people place on things like contracts or property deeds, Alito wrote that Roe and Casey have involved only “a more intangible form of reliance” that is “hard” for the court to assess.
Alito spent 10 pages in the draft opinion addressing the historical treatment of abortion in America pre-Roe. He did not address the broader treatment of women under the law throughout that time — noting that any argument that Roe should be upheld as a type of sex-based discrimination “is squarely foreclosed by our precedents.”
Although Alito wrote that the decision affects only abortion rights, his reasoning about what “liberty” is protected by the 14th Amendment could lead to challenges of other rights found in past court decisions, including contraceptive rights and same-sex couples’ marriage rights.
Notably, Roberts did not join the other five Republican appointees in voting at conference to overturn Roe. This fits with his decision this past summer not to join the other five Republican appointees in allowing the Texas abortion ban, S.B. 8, to go into effect.
Although it was not immediately clear how Roberts would vote in that case, in recent years he has proposed middle-road resolutions of cases that, in his view, would help maintain the court’s integrity as an institution. To craft any compromise in Dobbs, however, he would have to convince at least one of the justices who initially voted with Thomas and Alito — Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — to change their vote.
Alito: “Motivated by a desire to suppress the size of the African American population”
Alito also mentioned a point that conservatives who oppose abortion access have long argued: that supporters of abortion are “motivated by a desire to suppress the size of the African American population,” based on Thomas’ previously written opinion that abortion could become a tool of “modern-day eugenics.”
Thomas’ argument relies on data that shows Black women access abortion services at higher rates than other races in some states, according to polling. In Alabama, for example, Black women make up 62 percent of those getting abortions, and they make up 74 percent in Mississippi. A 2008 study also found that nationally, Black women were almost five times as likely to get an abortion than white women.
Health experts say there are myriad reasons for the discrepancy. Nonwhite women are more likely to get abortions because of access to healthcare. They’re more likely to have an unintended pregnancy than white women. They have worse outcomes during pregnancy, as well. According to the American Medical Association, Black women are three to four times more likely than white women to die from a pregnancy-related cause, mostly due to underlying conditions like preeclampsia and chronic stress.
Black women also receive the worst outcomes of restrictive abortion policies. As noted in Grid’s previous reporting on public health post-Roe, Emory University public health researcher Sara Redd and her colleagues found that Black people in states with abortion bans are at increased risk of preterm birth.
49 percent of Americans consider themselves “pro-choice,” while 47 percent said they were “pro-life”
If the court overturns Roe, it will represent a long-sought victory for evangelical Republicans who spent four decades mobilizing voters against the ruling — and likely usher in a new focus on banning abortion nationally.
Since the early 1980s, when religious leaders founded the so-called Moral Majority movement, Roe has been at the heart of a largely successful movement among Republicans to mobilize Christian conservatives. The movement against Roe v. Wade helped deliver Ronald Reagan a victory in 1980, proponents say, and has since formed the basis of today’s religious right.
Before the leaked decision, anti-abortion groups and Republicans were already looking to what’s next: stricter bans on abortion in Republican-controlled states and possibly efforts to ban abortion nationwide if Republicans retake Congress in the fall, the Washington Post reported.
While Roe v. Wade has become a touchstone political issue, polling has found the public’s opinions on abortion are nuanced and don’t fall neatly within party lines.
About 6 in 10 Americans feel abortion should be legal “in all or most cases,” according to polling conducted by the Pew Research Center, while 4 in 10 say it should be “illegal in all or most cases.” The results from Pew’s tracking echo other polling on the issue.
For reasons that are not clear, people’s answers differ when they’re asked about whether they are “pro-life” or “pro-choice”: In June 2021, 49 percent of Americans told Gallup they consider themselves “pro-choice” while 47 percent said they were “pro-life.”
Views on abortion start to change when people are asked about specific circumstances in which a person might have an abortion. A 2021 Associated Press poll found 87 percent of people said they support abortion if a woman’s life is in danger. Meanwhile, support for abortion fell when the pregnancy was further along: 61 percent of people told the AP that abortion should be legal during the first trimester, but only 34 percent in the second trimester and 19 percent in the third.
Democrats are more likely to say they think abortion should be legal than Republicans — but voters aren’t united on the issue within each party, either.
Democrats have become significantly more likely to favor of abortion over the last two decades. But liberal Democrats are still 17 percentage points more likely to say they support abortion than moderate and conservative Democrats, according to Pew Research Center.
Republicans are yet more divided: 59 percent of moderate and liberal Republicans told Pew they believe abortion should be legal in “all or most cases.” But only 22 percent of conservative Republicans agree.
Democrats, too, have been mobilizing for a post-Roe future. Even before Monday’s leaked decision, abortion rights groups were planning for a contentious midterm election where states’ abortion efforts are front and center.
Abortion rights advocates including Planned Parenthood announced earlier in the day on Monday — before the leaked draft — that they planned to spend $150 million during the 2022 midterms.
“We have reached a crisis moment for abortion,” Alexis McGill Johnson, president of Planned Parenthood, said at the time.
Public Health Lens
People denied abortions are at higher risk for experiencing poverty, anxiety and intimate partner violence
The conservative movement against abortion access is rooted in an argument around the definition of what constitutes life, a position influenced by personal moral and religious beliefs. But from the early days of the movement, advocates have argued that abortions are harmful emotionally and physically. The research has not supported the claims.
There is data, however, on what happens when a person tries and is unable to access abortion services. The data shows it comes at a cost — mentally, physically and financially.
People who are denied abortions are at higher risk for experiencing poverty, anxiety and intimate partner violence, according to peer-reviewed research. The Turnaway Study, which followed 1,000 women who sought abortions in the U.S. from 2008 to 2010, found that those who were denied had a 78 percent increase in overdue unpaid debt and an 81 percent increase in rates of tax liens, evictions and bankruptcies.
Limits on abortion access also mean that people seeking abortions will have to travel increasingly long distances to obtain them. The twin factors of distance and denial hit already marginalized people the hardest.
And the United States is already a land of abortion deserts, Ushma Upadhyay, a public health social scientist at the University of California, San Francisco, told Grid in January. She and her colleagues looked at access in U.S. cities with 50,000 or more residents and found 27 where a person would have to travel either 100 miles or one hour to obtain an abortion. The Midwest and the South are littered with them: Someone living in Rapid City, South Dakota, for example, would have to travel 318 miles to reach an abortion facility.
Finally, while the Food and Drug Administration in late 2021 lifted restrictions on who can dispense the drugs needed for medication abortions — including allowing physicians to prescribe them via telehealth appointments — some states have taken steps to limit the medications’ use. Texas, for instance, enacted a law late last year that bans prescribing the pills through telehealth visits and distributing them by mail. Other states have similar laws that limit the reach of medication abortions and their ability to meet the needs of those living in the country’s vast abortion deserts.
Legal observers have known since the confirmations of Kavanaugh in 2018 and Barrett in 2020 that Roe v. Wade and other abortion protections were likely in final days. But knowing a decision is coming is one thing, and actually seeing it in black and white is another.
We don’t ultimately know what the final draft of an opinion overturning Roe will look like, but we do know that Alito’s initial draft, by calling Roe “egregiously wrong from the start” suggests the Supreme Court could be headed in an aggressive direction.
The implication of such a dramatic change on abortion access in the United States is a profound change, touching on race, public health and politics.
Thanks to Lillian Barkley for copy editing this article.