According to an initial draft majority opinion written by Justice Samuel Alito and shared within the court and acquired by Politico, the Supreme Court has voted to overturn the landmark Roe v. Wade decision.
The draft opinion is a vehement, unabashed rejection of the 1973 judgement that established federal constitutional safeguards for abortion rights, as well as a second 1992 decision — Planned Parenthood v. Casey — that substantially upheld the right. “Roe was egregiously wrong from the start,” Alito says.
“We hold that Roe and Casey must be overruled,” he says in the “Opinion of the Court” statement. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
The ruling, as written in February, would have the immediate effect of ending a half-century guarantee of federal constitutional protection of abortion rights and allowing each state to decide whether to restrict or ban abortion. It’s unclear if the document has been revised since then.
In the court’s modern history, no draft decision has ever been made public while a case is still ongoing. The unusual disclosure is certain to exacerbate the discussion over what was already the most contentious case on the docket this term.
The draft opinion provides an unprecedented glimpse into the justices’ thoughts on one of the most important issues heard by the court in the previous five decades. Some court observers believed that the conservative majority would slash abortion rights without completely rejecting a 49-year-old rule. The draft demonstrates that the court intends to reject Roe’s logic and legal protections.
According to a person familiar with the court’s deliberations who spoke to Politico, four of the other Republican-appointed justices — Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – sided with Alito in a conference held among the justices a few weeks ago.
According to the individual, the three Democratic-appointed justices — Stephen Breyer, Sonia Sotomayor, and Elena Kagan — are working on one or more dissents. It is uncertain how Chief Justice John Roberts would vote, and if he will join an already prepared opinion or compose his own.
The paper, classified as an initial draft of the majority opinion, states that it was distributed to the justices on February 10. If the Alito draft is adopted, it will decide in Mississippi’s favour in the keenly watched case involving that state’s attempt to restrict most abortions after 15 weeks of pregnancy.
Roberts verified the draft opinion’s validity and announced a probe into the revelation.
“To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed. The work of the Court will not be affected in any way,” Roberts assured in a written statement. “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.”
The draft opinion, according to Roberts, “does not represent a decision by the Court or the final position of any member on the issues in the case.” Prior to publication, the court’s spokesperson declined to comment.
The draft opinion is 98 pages long, including a 31-page appendix covering state abortion laws from the past. The text has 118 footnotes and numerous citations to earlier court decisions, publications, and other authorities. This draft’s appearances and timing are consistent with court practise.
The release of Alito’s written majority opinion, an unusual breach of Supreme Court confidentiality and tradition surrounding its deliberations, comes as all sides in the abortion issue brace themselves for the verdict. Since the December oral arguments indicated a majority was inclined to sustain the Mississippi legislation, speculation about the impending decision has been high.
Alito, a George W. Bush appointee who joined the court in 2006, contends that the 1973 abortion rights decision was ill-conceived and deeply flawed, inventing a right mentioned nowhere in the Constitution and unwisely attempting to shift the contentious issue away from the political branches of government.
The draft ruling by Alito would overturn a decision by the New Orleans-based 5th Circuit Court of Appeals that concluded the Mississippi legislation violated Supreme Court precedent by virtually prohibiting abortions before viability.
Alito goes on to say that Roe’s “survey of history ranged from the constitutionally irrelevant to the plainly incorrect,” that its reasoning was “exceptionally weak,” and that the original judgement had “damaging consequences.”
“The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions,” Alito writes.
Alito mentions a wide range of critics of the Roe ruling with approval. He also cites liberal giants such as the late Justice Ruth Bader Ginsburg and Harvard Law Professor Laurence Tribe, who questioned the reasoning in Roe or its impact on the political process at various periods in their careers.
Alito’s scathing indictment of Roe, and the support of at least four other justices for it, are likewise indicative of the court’s recent rightward shift. Roe v. Wade was decided 7-2 in 1973, with five Republican appointees supporting two Democratic presidents’ nominees.
Also read: Can Congress rescue Roe vs Wade?
Overturning Roe would almost instantly result in severe limits on abortion availability in huge parts of the South and Midwest, with almost half of the states imposing extensive abortion prohibitions. The surgery could still be lawful in any state.
“The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion,” the draft conclusively reads. “Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”