The Supreme Court is ready to overturn the landmark Roe v. Wade ruling that established the federal right to an abortion over 50 years ago, according to a majority draft opinion published by Politico late Monday, May 2.
This is one of the biggest major breaches of confidential Supreme Court documents ever. While the document doesn’t represent the court’s final decision, it’s still a huge predictor of what the official court opinion will look like come June, the end of the Supreme Court term.
There are a lot of questions surrounding the leaked opinion, but NBN has you covered.
Why is the Supreme Court ruling on this again?
The Supreme Court accepted a new case for argument and ruling this term called Dobbs v. Jackson Women’s Health Organization. In this case, the state of Mississippi is looking to directly overturn both Roe and Planned Parenthood of Southeastern Pa. v. Casey using a law that seeks to ban abortion after 15 weeks of gestation. (For reference, it can take up to six weeks of gestation for someone to learn they’re actually pregnant.)
After the Mississippi law was passed, the Jackson Women’s Health Organization – the last abortion clinic in the state – sued the Mississippi State Department of Health and won, making the law unenforceable. The state appealed to a higher court and lost again, so now Mississippi is appealing directly to the Supreme Court.
Dr. Thomas Dobbs, Mississippi’s state health officer, is representing the state – that’s why his name is on the case. Now that the lower court’s ruling is being appealed, Dobbs has swapped places from the defendant to the plaintiff.
The oral arguments for Dobbs were heard early last December, and true to SCOTUS tradition, all of the justices casted their preliminary votes afterward. But before looking at the majority vote and Alito’s opinion draft, it’s important to understand the rulings that Dobbs could overrule.
Wait, so what’s Roe? And who’s Casey?
In 1973, the Supreme Court issued the decision that established the current backdrop for abortion rights, Roe v. Wade. Basically, the court argued that abortion access is implied in several Amendments – it’s not guaranteed in the Constitution, but Americans are entitled to it by virtue of their right to personal and marital privacy.
In Roe, the court declared “a fetus is not a person but ‘potential life’” and doesn’t have its own constitutional rights. The ruling also set up a trimester-based framework to balance a pregnant person’s right to abortion with the state’s right to “protect potential life” as the pregnancy progresses.
Despite its ubiquity, Roe is actually not the guideline for how abortion decisions are made today. A 1992 case called Planned Parenthood of Southeastern Pa. v. Casey changed abortion law significantly.
In Casey, SCOTUS ruled that individual states were entitled to certain abilities, like requiring parental consent for a minor to get an abortion. More importantly, the court eliminated the trimester-based framework it has established in Roe.
Instead, the legality of an abortion would depend on the viability of the fetus. If a fetus could survive on its own – if it were viable – then an abortion was no longer legal. Casey also created the standard of “undue burden.” Under the ruling, a law is void if it would “place substantial obstacles” in front of someone seeking to abort a non-viable fetus.
By creating this standard, Casey reaffirmed a pregnant person’s right to privacy and allowed for people to continue seeking abortions under federal law. But the ruling opened the door for states to challenge what it means to impose an “undue burden.”
Now, if made law, the leaked SCOTUS draft could allow states to impose abortion restrictions however they like.
The majority opinion, drafted by Alito
In a document obtained by Politico, Associate Justice Samuel Alito wrote that Roe and Casey should be overruled and that the issue of abortion needs to return to “the people’s elected representatives.”
“Roe was egregiously wrong from the start,” Alito wrote. “Its reasoning was exceptionally weak, and the decision has had damaging consequences.”
The initial first draft, dated Feb. 10, 2022, outlines the majority opinion after Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett voted with Alito to overturn Roe following oral arguments for Dobbs, according to Politico. The draft is 98 pages long, including a 30-page appendix showing that abortion has been historically criminalized.
Alito argues that the Roe and Casey rulings were defending a right that is neither found in the Constitution nor “deeply rooted in the Nation’s history and traditions.”
Alito goes on to say that unenumerated rights – rights that aren’t explicitly protected in the Constitution – only apply if the right has been historically protected, hence the 30-page laundry list of abortion laws. It’s also important to note that the decision to overturn Roe and Casey goes against stare decisis – a legal concept that means a ruling follows precedent established in a prior ruling. But Alito counters that this principle of precedent “does not compel unending adherence to Roe’s abuse of judicial authority.”
The draft references the viability idea in Casey and argues that the distinction of viability “makes no sense.”
The crux of the argument against Roe and Casey goes to the meaning of “liberty” as put forth in the Fourteenth Amendment’s due process clause. In 1973 – and again in 1992 – it was affirmed that the broader idea of liberty, protected by due process, includes a right to privacy. Roe and Casey argued that this privacy included the right to an abortion. Alito says point-blank that this is incorrect, and the Fourteenth Amendment cannot defend the right to an abortion.
OK, but how much does this draft really matter?
It matters a lot – for several reasons.
Chief among them is that this first majority opinion draft could be similar to the court’s decision come June. Alito drafted it after a preliminary vote, but Politico’s source maintains that the justices who voted to overturn Roe v. Wade haven’t changed their minds.
While questions of the draft’s validity have circulated, early Tuesday morning, Chief Justice John Roberts confirmed the draft’s authenticity and announced that the court would investigate the leak. Roberts also noted that the draft does not reflect a final decision.
Until the formal court ruling gets published, likely by June, it won’t be certain how all the justices are voting – but let’s do the math anyways.
On the right are Justices Alito, Coney Barrett, Gorsuch, Kavanaugh and Thomas. That’s five votes to overturn Roe. On the left are Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor, who are likely to dissent (this decision will be made before Judge Ketanji Brown Jackson replaces Breyer). In the center-right-ish is Chief Justice Roberts, who CNN reported does not want to overturn Roe. With Roberts joining the potential dissenting justices, that would be four votes.
If the current voting stands with 5-4, Alito’s decision would become the new precedent. Roe and Casey would be overturned.
What the hell happens next?
First, the actual decision has to be issued. If it aligns with Alito’s draft, states would be allowed to legalize, regulate or outright ban abortion. While abortion is still just as legal today as it was yesterday, there has been an increase in anti-abortion legislation since the Supreme Court accepted the Dobbs case.
Currently, anti-abortion lawmakers in at least 15 states are working to push through either Texas-style six-week abortion bans or 15-week bans, according to the Washington Post’s abortion bill tracker. Thirteen states have "trigger bans" in place, meaning that abortion will almost immediately be banned if Roe is overturned, and 26 states also have laws that could be used to restrict the legal status of abortion.
This court ruling also has the potential to change the Democrats' priorities leading up to midterm elections later this year. Hours after the draft leaked, Democrats renewed their call for Congress to pass legislation that protects abortion rights.
While this potential ruling is disastrous for abortion rights, Alito’s draft had a narrow scope.
“Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” he wrote.
One of the biggest implications is a deep exposure of Supreme Court secrecy. It has rarely happened that a draft opinion has circulated before an actual decision, let alone for such a high profile court case.
“This was a singular and egregious breach of that trust that is an affront to the court and the community of public servants who work here,” Roberts said in his statement Tuesday morning.
For now, it’s anyone’s guess whether the projected outcome of Dobbs will galvanize a Congressional response.
Editor’s Note: This story has been updated to better reflect Dobbs’ role in the case. A previous version of this story incorrectly suggested that he was personally suing the Jackson Women’s Health Organization. NBN regrets the error.
Additionally, many of the Supreme Court rulings mentioned in this story refer to a “woman’s” right to abortion. Where possible, NBN uses the phrase “pregnant people” rather than “pregnant women” or just “women” to ensure that we don’t erase transgender and gender non-conforming people who experience pregnancy.
Thumbnail image “Supreme Court rally” by Adam Fagen is licensed under CC BY-NC-SA 2.0.