The United States Supreme Court is poised to overturn the landmark Roe v. Wade decision and once again allow states to criminalize the exercise of reproductive rights, including abortion care, a leaked draft of an opinion suggests.
Authored by Samuel Alito, one of George W. Bush’s two Supreme Court appointees, the draft declares that “Roe was egregiously wrong from the start” and “the decision has had damaging consequences.”
The document, which Alito apparently developed to serve as the ruling in Dobbs v. Jackson Women’s Health Organization, was published by Politico earlier this evening after the publication’s editors concluded it was authentic.
“After an extensive review process, we are confident of the authenticity of the draft,” Politico leadership told the editorial staff. “This unprecedented view into the justices’ deliberations is plainly news of great public interest.”
The draft is authored in the style of a majority opinion that Alito’s right wing colleagues Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett, and possibly John Roberts could join. The Court’s more liberal justices — Elena Kagan, Sonia Sotomayor, and Stephen Breyer (who is set to be replaced by Ketanji Brown Jackson at the end of the term) are expected to dissent.
“Roe found that the Constitution implicitly conferred a right to obtain an abortion, but it failed to ground its decision in text, history, or precedent,” Alito’s draft, dated February 10th, 2022 and addressed to his colleagues, argues. “It relied on an erroneous historical narrative; it devoted great attention to and presumably relied on matters that have no bearing on the ‘meaning of the Constitution.”
“We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey,” Alito adds later.
“And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision. We can only do our job, which is to interpret the law, apply longstanding principles of stare decisis, and decide this case accordingly. We therefore hold that the Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.”
Notice how the words “apply longstanding principles of stare decisis” appear in extremely close proximity to “Roe and Casey must be overruled.” The overturning of Roe is precisely the kind of act of “raw judicial power” that Alito’s draft assails repeatedly as a bad thing. But no matter, because the justification here is irrelevant. The Supreme Court’s right wing bloc has been itching for the chance to get rid of Roe for a long time, and any rationale will do — even a twisted one.
“For decades, the Supreme Court has upheld precedent and protected access to safe, legal abortions, as well as the privacy of a decision made between women and their doctor. Now, due to extremist Republicans and conservative justices on the Supreme Court, women could lose access to the health care they need and that the overwhelming majority of Americans support,” the Democratic National Committee (DNC) said in a statement after the publication of Politico’s article.
“Make no mistake: reproductive rights will be on the ballot and this midterm election is more important now than ever before. Voters will make their voices heard, we will fight back with everything we have, and Republicans will have to answer for their party’s relentless attacks on Americans’ rights.”
“If this is true, this kind of outcome is exactly what I’ve been ringing alarm bells about — and this is a five alarm fire,” said United States Senator Patty Murray (D‑Washington) in a statement citing the release of the draft opinion.
“Republicans’ goal has always been to ban abortion: they’re already banning abortion in state legislatures across the country, they’re fighting for a federal ban right here in the Senate, and plan to overturn Roe in the Supreme Court too.”
“In a matter of days or weeks, the horrifying reality is that we could live in a country without Roe. If this is true, women will be forced to remain pregnant no matter their personal circumstances. Extreme politicians will control patients’ most personal decisions. And extreme Republicans will have eliminated a fundamental right an entire generation of women have known their whole lives.”
“After ringing these alarms, for years now: it’s time to break the glass. It’s time for every single person — in every single state — to realize this impacts you, your choices, your rights. It’s not happening to someone else, in some other state — it’s happening everywhere, and the highest court in the land is preparing to rip away your rights at this very moment.”
“We need to fight back with everything we’ve got right now. The right to abortion is on the line, and I’ll never stop fighting to protect it.”
“This draft opinion confirms our worst fears,” said U.S. Senate candidate Charles Booker, who is challenging Rand Paul in Kentucky.
“In a radical act of government overreach, the conservative majority of the United States Supreme Court has all but confirmed that it intends to overturn decades of settled legal precedent, which would deny millions of Americans their agency, humanity, life-saving healthcare, and reproductive freedom.”
“I am disgusted, yet unsurprised, by the deeply troubling revelation of SCOTUS’s strategy to overturn Roe v. Wade,” said King County Executive Dow Constantine, using the abbreviation for Supreme Court of the United States.
“Women and families will suffer because of this hateful, misogynist agenda to deprive women of their bodily autonomy.”
“I believe in and am committed to the right of every woman to make the choice that is best for herself and her family, and I will never stop fighting to ensure that abortion and family planning care are available, without barriers and unnecessary restrictions, in King County and Washington State.”
“What right-wing zealots don’t understand, or simply don’t care about, is that abortions will not stop happening if they are criminalized. They will simply become unsafe. I urge all good people to make your voices heard, and join me in fighting for the preservation of reproductive rights and justice across our nation.”
When the Supreme Court hands down its decision in Dobbs v. Jackson Women’s Health Organization, which will happen no later than the end of June, abortion care is expected to become illegal in more than half the states.
In the Pacific Northwest, abortion care will remain legal in Washington and Oregon, where it is explicitly allowed by state law.
In Idaho, abortion care will be illegal (Idaho legislators just recently adopted a Texas-style bounty law intended to make obtaining an abortion unfeasible.)
In Alaska and Montana, abortion care will likely remain legal for some period of time following Roe’s imminent demise due to state constitutional provisions. Alaska and Montana have mostly Republican electorates, however, that are not supportive of reproductive freedom, which is a concern.
The Guttmacher Institute maintains a page that explains what the legal status of abortion is across the United States in the absence of Roe. This page is worth bookmarking for future reference.