Politico’s release Monday of a draft Supreme Court opinion written by Justice Samuel A. Alito Jr. has shocked advocates for and against abortion rights. The draft opinion is a key preliminary step in the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, which is expected sometime early this summer. Politico accurately describes it as “a full-throated, unflinching repudiation” of both Roe v. Wade and Casey v. Planned Parenthood, the Supreme Court cases that defined a constitutional right to abortion. Earlier Tuesday, Chief Justice John G. Roberts Jr. released a statement confirming the draft’s validity and promising a swift and consequential investigation.
Alito wrote the opinion to build a five-justice majority that would overturn federal abortion rights, and return abortion regulation entirely to the states. Its release raises serious questions about what is going on inside the court. Here is what you need to know.
The leak itself is surprising
Many people were surprised that the draft opinion was leaked. The court prefers to keep internal deliberations confidential, and leaks are relatively rare.
Contrary to some claims, the court’s confidentiality has been broken before. As historian Del Dickson notes, Justice Roger B. Taney was enraged when the New York Tribune reported on the outcome of Dred Scott v. Sandford before the ruling’s release; Justice Benjamin R. Curtis provided “an advance copy of his dissent to a Boston newspaper,” after which he resigned from the court. Later, a clerk leaked the original result in Roe v. Wade itself to a Time magazine reporter, infuriating Justice Warren E. Burger.
This leak is different in some important ways. It was no secret that several justices were considering overturning Roe v. Wade. Justices Alito and Clarence Thomas have openly stated that they wanted to abandon it, while the justices’ behavior during oral argument signaled that they were likely at least to weaken it. The draft opinion, however, was not a final decision. The court is still negotiating, and Alito may not have secured the agreement of his colleagues.
It’s important that Alito drafted the opinion
To understand the opinion’s significance, you need to know how the court actually makes its decisions. Shortly after advocates have argued a case before the justices, they discuss it in conference and cast a preliminary vote on how they want the ruling to go.
Almost as important as the vote itself is the assignment of the majority opinion to a justice who gets to write it. The most senior justice who votes with the majority assigns the opinion. If the chief justice is in the majority, it’s his call. Otherwise, the longest-serving justice has authority. Assignments reflect workloads, but also strategic decisions by the justice making the assignment. An opinion by Sonia Sotomayor will look very different from an opinion by Neil M. Gorsuch.
We can guess what happened in Dobbs v. Jackson Women’s Health Organization. Alito’s authorship suggests that Chief Justice Roberts may have failed to secure a majority around maintaining at least a shell of Roe v. Wade. Anonymous sources confirmed Roberts’s stance to CNN. If Roberts voted in the minority, a five-justice majority composed of Thomas, Alito, and former president Donald Trump’s three appointees, Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett, probably emerged from the conference. Thomas would have assigned the opinion to Alito, whom he would trust to draft an opinion advocating for Roe v. Wade’s destruction.
The draft opinion would dramatically reshape abortion rights — and affect other social issues
We don’t know how other justices reacted to this first draft. What we can say is that Alito was clearly swinging for the fences, not only regarding the outcome but also the reasoning he uses to justify it. If he gets four other justices to sign on, it would fundamentally transform abortion jurisprudence, granting states broad latitude to ban abortion, even when pregnancy results from rape or incest.
Much of the commentary thus far has rightfully focused on the draft’s overruling of Roe v. Wade and Planned Parenthood v. Casey, the latter of which found that abortion regulations must not place an undue burden on the person seeking to exercise this right before fetal viability. The long draft (92 pages!) covers a lot of other ground, which might make it hard to get the votes that Alito needs to secure — although justices can decide to join only parts of an opinion.
Alito’s draft frames Roe as “egregiously wrong from the start,” denying that the constitutional guarantee of liberty included abortion, foreclosing any efforts to ground a right to abortion in equality rather than liberty, and suggesting that liberty only protects rights that are essential to American history or tradition. It recites a curated history of abortion regulation that completely fails to engage with the vast literature produced by professional historians on this issue, while reiterating criticisms of Roe v. Wade that he and Thomas have made repeatedly in their dissents.
The draft hints at a broader agenda than abortion rights. Alito suggests that people’s expectations that abortion is a right is no more than a “policy position” and suggests that any law regulating abortion is “entitled to a ‘strong presumption of validity.’” States can consider the preservation of prenatal life from the moment of conception; can regulate particular abortion methods that a state may find objectionable; and can consider “the preservation of the integrity of the medical profession” as “legitimate interests.” That suggests that states may have “legitimate interests” in regulating contraception, too, as well as possibly calling other rights into question.
Now the question is whether the Trump justices will agree to this entire package, and whether the leaking of the opinion changes the politics. The court will be under intense pressure from both right and left. Still, it is clear that Roe v. Wade will either be overruled outright or shrunk down into an insignificant fig leaf. In practice, many poor and rural people already find it difficult or impossible to access abortion. Now we will see if the politics changes, when a court ruling radically restricts not just practicalities but rights.
Julie Novkov is interim dean of Rockefeller College of Public Affairs & Policy at the University at Albany, State University of New York, a professor of political science and women’s, gender and sexuality studies and a Collins fellow. Her most recent book, co-authored with Carol Nackenoff, is “American By Birth: Wong Kim Ark and the Battle for Citizenship” (University Press of Kansas, 2021).
