On Monday night, POLITICO obtained Supreme Court Justice Samuel Alito’s initial draft majority opinion on the Mississippi case, Dobbs v. Jackson Women’s Health Organization, that bans abortion after 15 weeks. Alito’s opinion says, “We hold that Roe and Casey must be overruled,” which implies that the Supreme Court has already voted to overturn Roe v. Wade, the 1973 case that legalized abortion. The draft is labeled as the “Opinion of the Court.”
Alito also said, “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,” Alito said. This opinion is a wholesale rejection of Roe v. Wade and Planned Parenthood v. Casey, the 1992 abortion case that maintained Roe v. Wade.
Justice Alito also mentioned Lawrence v. Texas, the 2003 case that legalized the right to engage in private sexual acts, and Obergefell v. Hodges, the right to marry a member of the same sex. Of the right to privacy, which was established in Roe v. Wade and used in Lawrence v. Texas and Obergefell v. Hodges, Alito said, “these attempts to justify abortion through appeals to a broader right to autonomy and to define one’s ‘concept of existence’ prove too much.”
“Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like,” Alito continued. “None of these rights has any claim to being deeply rooted in history,” Alito added.
The court’s finding on the Mississippi case, however, is not final until it is published, which is expected in the next month or two. Also, justices have changed their votes in the past after draft opinions circulate in the court. A justice’s opinion has never been leaked to the public in American history before the case was decided. Many speculate that this was an attempt to pressure the justices into deciding not to strike down Roe v. Wade.
If the Court releases a narrower ruling than was leaked tonight, it’s open season after this. SCOTUS will have told the world that pressuring them with leaks works. This will be the new normal.
So much for “but muh norms” if this was a liberal clerk, btw. https://t.co/i2eONc4bfQ
— Ryan Ellis (@RyanLEllis) May 3, 2022
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.
— SCOTUSblog (@SCOTUSblog) May 3, 2022
Some speculate that the leak occurred to pressure Democrats, who have a slim majority in the US Senate, to end the filibuster, so they have the votes to codify Roe v. Wade into the law.
This is what the draft leak is really about. https://t.co/I4LPxMd3mW
— Jeremy Boreing (@JeremyDBoreing) May 3, 2022
Joe Biden, pressured to give a response, said in a statement Tuesday morning “We do not know whether this draft is genuine, or whether it reflects the final decision of the Court.” He claimed that his Administration has “argued strongly” in defense of Roe v. Wade. Biden also said, “if the court does overturn Roe, it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose.”
Chief Justice John Roberts of the Supreme Court recently announced an investigation into the leak. In a statement, Roberts said that Alito’s draft is authentic. “To the extent, this betrayal of the confidences of the court was intended to undermine the integrity of our operations, it will not succeed,” Roberts said. “I have directed the marshal of the court to launch an investigation into the source of the leak,” Roberts continued.
The full text of Justice Alito’s 98-page opinion draft can be found on POLITICO.