On Monday, May 2, 2022, POLITICO released a leaked draft opinion written by Justice Samuel Alito that revealed the Supreme Court plans to overturn its decisions in Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey, two landmark cases which secured the right of women in the United States to have access to abortions. As it is a draft, it is still possible that the ruling can change or that the arguments may be altered before an official decision is released, likely within the next two months, but the release of this draft is an unprecedented look into the otherwise secretive process of Supreme Court decision making.
The 1973 ruling of Roe was the first to guarantee a right to abortion, arguing that the Fourteenth Amendment of the U.S. Constitution’s Due Process Clause, in tandem to the First, Fourth, Fifth, and Ninth Amendments, guaranteed a right to privacy that applied to a woman’s decision as to whether or not to get an abortion. Though this right was not absolute, it prohibited the passage of laws that violated the balance of protecting the health of women as well as preserving prenatal life. It did this via the establishment of a trimester system, with different prohibitions allowed depending on the term of the pregnancy.
In 1992, the Court’s ruling in Casey reaffirmed parts of Roe but also overturned its trimester system and allowed for some restrictions to be made as long as no undue burden was caused. The case also eliminated a requirement of Pennsylvania law which forced women to notify their spouses if they obtained an abortion, justifying it with the Fourteenth Amendment.
In a first draft of the majority opinion of the Court regarding the case Dobbs v. Jackson Women’s Health Organization, Alito slammed the rulings of Roe and Casey as “egregiously wrong” and “exceptionally weak,” having had “damaging consequences” to the unity of the nation. Alito argued abortions have no legal justification as of yet according to the draft, and legal defenses using the Fourteenth Amendment were at best shaky and at worst completely incorrect.
Alito wrote that “a State’s regulation of abortion is not a sex-based classification and is thus not subject to the ‘heightened scrutiny’ that applies to such classifications,” as well as that “as the Court has stated, the ‘goal of preventing abortion’ does not constitute ‘invidiously discriminatory animus against women.’”
Alito discussed the historical context and precedent of abortions in U.S. law: “Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. Zero. None.” At the time of the passage of the Fourteenth Amendment, three quarters of states had laws explicitly outlawing abortion, he adds, and that ultimately Roe and Casey were based upon and upheld a “faulty historical analysis.”
“The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions,” Alito argues in the draft.
Alito pushed against the justification of Roe and Casey from an implied right to privacy, instead stating that no such right existed within the Constitution. In Casey, associate justices Sandra Day O’Connor, Anthony Kennedy, and David Souter wrote that “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Alito, however, criticized this statement as having no legal binding to a right to act on opinion, but merely to speak and think freely. “Those criteria,” he wrote, “at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like.”
Regarding the precedent of Roe and Casey, Justice Alito compared the two to Plessy v. Ferguson – the case which legalized “separate but equal” facilities based upon race. While previous rulings can carry weight, he argued, they do not come prior to the Constitution.
“Roe was on a collision course with the Constitution from the day it was decided, and Casey perpetuated its errors,” Alito added, continuing that “wielding nothing but ‘raw judicial power,’… the Court usurped the power to address a question of profound moral and social importance.” Rather than be the realm of the Court, Alito felt the issue of abortion is the legislature’s domain.
The draft also attacked the justification of abortions when a pregnancy is no longer viable, defining the line between viability and a lack thereof as not clear enough to constitute a legal basis for distinction.
As of now, Alito's opinion is supported by justices Clarence Thomas, Amy Coney Barett, Brett Kavanaugh, and Neil Gorsuch. Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor are dissenting, while Chief Justice John Roberts's vote is currently unknown. If Roe is overturned, 12 states have already passed "trigger laws," which would ban all or most abortions the second such a ruling is made, while 5 additional states have pre-Roe bans still in place but unenforced and another 5 states already have bans on abortions after six weeks.
Following POLITICO’s release of the draft, a spokesperson for the Supreme Court only stated the following: “The Court has no comment.”