A leaked draft opinion shows that Justice Samuel Alito and other members of the US Supreme Court’s conservative majority are seriously considering overruling landmark decisions that have protected a person’s right to an abortion for decades, and could be poised to do so in the next two months.
The bombshell report from Politico featured a 98-page document that appears to be the first draft of an opinion that would overrule both Roe v. Wade, the 1973 decision that recognized a constitutional right to abortion, and Planned Parenthood of Southeastern Pennsylvania v. Casey, a 1992 decision that upheld the core of Roe while also revising the standards that federal courts rely on to decide if state restrictions on abortion are lawful.
Politico reported that four other members of the court’s conservative arm — Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — had joined Alito in voting in favor of overturning Roe at a meeting after the justices heard arguments in December, citing an unnamed source described as being “familiar with the court’s deliberations.”
Those five justices remained in agreement, according to the source, but, as the article also pointed out, the court’s opinion — and where each of the justices ultimately lands on the decision — can dramatically change between the first draft and the final version. The court does not announce when it will release an opinion in a given case, but the term is expected to end by early July.
A spokesperson for the Supreme Court declined to comment.
Politico’s source wasn’t clear on where Chief Justice John Roberts Jr. stood; Roberts is conservative but has sided with the court’s liberals in certain high-profile cases in what has appeared to be an attempt at carving out a new ideological middle. Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan, the three remaining liberal-leaning justices, are working on dissents, according to Politico.
President Joe Biden’s newly confirmed justice-to-be Ketanji Brown Jackson won’t begin serving on the court until Breyer retires at the end of the term.
The end of Roe and Casey would leave Republican-led states largely free to severely restrict abortion access beyond what’s on the books already or to ban the procedure outright. That’s the broader outcome that Mississippi had argued for when its lawyers went before the court last year to defend the state’s 15-week ban; two dozen states signed a friend-of-court brief backing Mississippi’s position, some of which had tried to pass similarly restrictive laws in the past that were struck down by lower court judges of all ideological stripes who were bound to apply Roe and Casey.
Even if Alito’s opinion or some other version of it becomes final, states can continue to allow access to the procedure; the Guttmacher Institute, which tracks abortion-related policies nationwide, has identified 16 states and the District of Columbia as having laws in place that protect the right to abortion.
If the draft opinion becomes reality — or if the court upholds the Mississippi law in a narrower way that weakens but doesn’t wholly reverse Roe and Casey — access to abortion services and the doctors and other professionals who provide reproductive healthcare will continue to shrink in some parts of the country. Pregnant people who want or need an abortion in states that limit or ban the procedure will have to travel, an expensive and time-consuming option; seek out alternatives to in-person care, such as medication abortions, which have been tested but are not widely accessible and face opposition from anti-abortion advocates; turn to some of the dangerous at-home methods that marked the pre-Roe era; or feel compelled to carry a pregnancy to term and give birth.
Mississippi Attorney General Lynn Fitch released a statement reserving any reaction for the final announcement: “We will let the Supreme Court speak for itself and wait for the Court’s official opinion.” Abortion providers and reproductive health advocates responded by stressing that Roe remained in place for now but also denounced what they expect to be the likely outcome in a few weeks or months.
“While we have seen the writing on the wall for decades, it is no less devastating, and comes just as anti-abortion rights groups unveil their ultimate plan to ban abortion nationwide,” Alexis McGill Johnson, president of Planned Parenthood Federation of America, said in a statement. “Understand that Planned Parenthood and our partners have been preparing for every possible outcome in this case and are built for the fight. Planned Parenthood health centers remain open, abortion is currently still legal, and we will continue to fight like hell to protect the right to access safe, legal abortion.”
The leaked draft represented a massive breach of Supreme Court protocol and norms, but the substance of the document isn’t a total surprise. Anti-abortion lawmakers and activists and conservative advocacy groups have for years supported efforts to get cases before the justices that would create opportunities to erode Roe’s protections. Senate Republicans have made the confirmation of federal judges and justices who are more likely to support reversing Roe a top priority under GOP administrations and have made it a central voting issue for their base.
The fact that the court agreed to hear the Mississippi case at all was a sign that at least some of the justices were open to revisiting Roe and Casey. During arguments in December, members of the conservative wing asked questions that strongly suggested they were inclined to side with Mississippi, but the question was how far the decision would reach and whether there were enough votes to reverse Roe.
The justices also engaged in an unusual public debate among themselves during the December hearing about how the outcome of the case would affect the public’s trust in the court and whether there was any outcome that wouldn’t deepen the perception of the justices as political actors. Alito’s reported draft opinion took the position that Roe had only served to worsen the national divide over abortion, and that the best course was to “return the issue of abortion to the people’s elected representatives.”
Alito wrote that Roe was “egregiously wrong” from the start and that stare decisis — a legal principle that broadly directs courts to stick with long-standing, settled decisions — didn’t “compel unending adherence to Roe’s abuse of judicial authority.” During arguments in the Mississippi case, Justice Elena Kagan warned that stare decisis was critical to “prevent people from thinking that this court is a political institution that will go back and forth depending on what part of the public yells loudest and preventing people from thinking that the court will go back and forth depending on changes to the court’s membership.”
“In the end, we are in the same exact place as we were then, except that we're not because there's been 50 years of water under the bridge, 50 years of decisions saying that this is part of our law, that this is part of the fabric of women's existence in this country, and that that places us in an entirely different situation than if you had come in 50 years ago and made the same arguments,” Kagan said at the time.