(The Hill) — A leaked Supreme Court draft opinion authored by conservative Justice Samuel Alito would overturn the 1973 ruling in Roe v. Wade and upend federal protections that for nearly five decades have safeguarded the right to terminate an unwanted pregnancy.
The draft opinion has the support of a five-member majority of conservative justices, according to Politico, which published the leaked document Monday evening. Those votes and the opinion itself, however, are subject to change before a final decision is published, likely by the end of June.
Here are five key lines from Alito’s 67-page draft opinion. The ruling stems from a dispute over Mississippi’s 15-week abortion ban, which directly conflicts with Roe’s prohibition on states banning abortion prior to fetal viability, around 23 weeks.
“We thus return the power to … the people and their elected representatives”
The practical effect of Alito’s opinion would be to hand full authority to states to regulate abortion. Many Republican officials had urged the court to adopt this very approach in the Mississippi dispute, with a dozen GOP governors in an amicus brief calling on the court to use the case to restore state control over the procedure.
Alito’s opinion delivered on that request, stating: “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
Justice Brett Kavanaugh had pursued a similar line of questioning during oral argument in December. He, along with fellow Trump nominees Justices Neil Gorsuch and Amy Coney Barrett, plus Justice Clarence Thomas, formed a majority with Alito, according to reports.
“Why should this court be the arbiter rather than Congress, the state legislatures, state supreme courts, the people, being able to resolve this?” Kavanaugh asked an attorney for the Biden administration during arguments. “And there’ll be different answers in Mississippi than New York, different answers in Alabama than California, because they’re two different interests at stake and the people in those states might value those interests somewhat differently.”
The 2018 Mississippi law at issue in the case, which has been paused during litigation, is just one of hundreds of abortion measures that state legislatures passed in recent years.
According to abortion rights advocacy group Guttmacher Institute, 22 states would be certain to attempt to ban abortion as quickly as possible. Among those, 13 states have trigger laws already in place, designed to take effect automatically or by quick state action if Roe no longer applies.
“Roe … was remarkably loose in its treatment of the constitutional text”
Conservatives have long derided Roe as untethered from the Constitution — or as Alito put it in his draft opinion, “remarkably loose in its treatment of the constitutional text.”
In a footnote, Alito included a key passage from Justice Harry Blackmun’s 7-2 decision in Roe describing the constitutional underpinnings of the abortion right:
“This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
Taking aim at Blackmun’s rationale, Alito described the ruling as an “unfocused analysis,” whose “message seemed to be that the abortion right could be found somewhere in the Constitution and that specifying its exact location was not of paramount importance.”
“It held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned,” Alito wrote.
“A right to abortion is not deeply rooted in the Nation’s history”
One of the more tendentious claims in Alito’s draft is that, “The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions.”
He cites a litany of historical sources in seeking to establish the existence of “an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.”
Alito also asserts that no persuasive counterargument has been put forth. “A few of respondents’ amici muster historical arguments,” he writes, “but they are very weak.”
Alito’s treatment of the historical record is likely to draw fierce pushback from dissenters on the bench, who have a number of amicus briefs to draw upon.
Among them is a brief by David Gans, a constitutional litigator and scholar at the Constitutional Accountability Center, who says there’s an originalist argument to be made against Alito’s position. As Gans writes in a forthcoming essay: “The right to abortion flows logically from these fundamental rights that the Fourteenth Amendment was written to protect.”
Court not bound by “egregiously decided” precedent
One of the overarching concerns in the Mississippi case has been “stare decisis,” the legal doctrine that generally binds courts to abide by their past rulings. Strictly applied, this concept would leave the court no wiggle room to depart from Roe.
But Alito, citing precedent, noted that: “We have long recognized, however, that stare decisis is ‘not an inexorable command.’” Elsewhere in the draft opinion, Alito says the doctrine does not require “unending adherence” to cases that were wrongly decided, pointing to the infamous 1896 decision Plessy v. Ferguson that endorsed legal segregation by race before being overturned in 1954 by Brown v. Board of Education.
“Stare decisis … does not compel unending adherence to Roe’s abuse of judicial authority,” Alito wrote. “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.”
“Nothing in this opinion should … cast doubt on (other) precedents”
Alito’s draft emphasizes that his ruling was a narrow one and would not spillover to decisions on issues like same-sex marriage (Obergefell v. Hodges), sex between gay couples (Lawrence v. Texas) and the right to contraception (Griswold v. Connecticut).
“Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” Alito wrote.
But many who read the opinion were unconvinced. Alito’s draft is fueling questions about whether rights that are seen as having a thin historical record and which are not explicitly referenced in the Constitution — so-called “unenumerated rights” — would remain on a firm footing if the draft becomes law.
“I think it’s more than a valid concern,” said Steven D. Schwinn, a professor at the University of Illinois Chicago Law School. “I think it’s a real, deep worry.”