On Monday, May 2, 2022, Politico released a (now authenticated) leaked first draft of a Supreme Court opinion regarding Dobbs v. Jackson Women’s Health Organization. The case is an appeal of a lower court ruling which had struck down a Mississippi law that banned most abortions after fifteen weeks of pregnancy.
This Mississippi law conflicts with the Roe v. Wade ruling from 1973 which legalized abortion in the US, and the Planned Parenthood of Southeastern Pennsylvania v. Casey ruling of 1992, which revisited the Roe ruling and eventually upheld it with some modifications. Thus, this Mississippi case has once again brought the Roe and Casey rulings into question. What’s more, the leaked opinion indicates that the Court will overturn Roe and Casey after 49 years as precedent.
Breaking Down the Draft Opinion’s Arguments
In the 98-page draft opinion written by Justice Samuel Alito, he explains that the hope of the Court for Casey had been for “‘the contending sides of a national controversy to end their national division’ by treating the Court’s decision as the final settlement of the question of the constitutional right of abortion” but that this goal was clearly not achieved (p. 4).
He concludes, “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision…” (p. 5).
What’s more, Justice Alito states that “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 inflamed debate and deepened division” (p. 6).
Justice Alito explains that “wielding nothing but ‘raw judicial power’…the Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people” (p. 40). He expresses concern that Roe “imposed the same highly restrictive regime on the entire Nation, and it effectively struck down the abortion laws of every single State” (p. 2). He notes that “26 States have expressly asked this Court to overrule Roe and Casey and allow the States to regulate or prohibit pre-viability abortions” (p. 4).
After many pages of critique of the Roe and Casey decisions, the opinion concludes that it is left to the states to determine their own laws about abortion.
What Does it Mean to be a Draft Opinion?
According to Politico and other sources, this appears to be the first time in history that a Supreme Court opinion draft has been leaked in full. On rare occasions in the past, such as the original Roe v. Wade case, detailed descriptions of opinion documents and disagreements among the justices have slipped out, but not an actual draft opinion.
The leaked draft is a first draft, and it was sent out to the other justices on February 10th, 2022. It is unclear if there have been any updates since then.
In The Supreme Court,* published in 2001 by former Chief Justice William Rehnquist, he explains that after oral arguments conclude, the justices meet alone in a room, without secretaries, clerks, assistants, etc. to share their views on the case and take an initial vote. These votes determine the majority opinion, and one of the justices is assigned to write that opinion.
Most justices have their clerks write “a rough draft of an opinion embodying the views of the majority of the Court expressed at conference” (Rehnquist, p. 261). This draft may be substantially re-written, shortened, simplified, and clarified by the justice, which is then printed and circulated to the other eight justices as a first draft. This appears to be the draft that was leaked.
Each justice reviews the draft and may send a letter that says something like, “Please join me in your opinion in this case” if they agree with the opinion and have no criticisms or suggestions. However, if they want the opinion changed, the amount of leverage they have to get those changes implemented depends on the split of the vote. If it’s a close vote, then it’s more likely that their proposed changes will have sway.
On April 26th, the Wall Street Journal published an opinion saying that based on comments made during oral arguments it appeared that five of the nine justices were in favor of overturning Roe v. Wade. This would seem to be a very close split, with any one justice providing the deciding vote.
The whole process typically takes six months to a year including oral arguments and briefing, and often votes are cast on the majority opinion before waiting for circulation of any dissenting opinions. It is currently assumed (and Politico has stated) that the leaked draft was the majority opinion.
What does this mean for abortion rights in the US?
If a majority of the justices agree on the decision in the leaked draft, then Roe and Casey would be overturned, and power to determine abortion rights would be handed down to each state to legislate for itself through the democratic process. However, as the Court said in their press release on the 3rd, “Although the document described in yesterday’s reports is authentic, it does not represent a decision by the Court or the final position of any member on the issues in the case.”
The results of this ruling are sure to have implications for the upcoming midterm elections at both the state and national level. But even if Roe and Casey are overturned, that does not mean that no federal abortion law can exist. Supreme Court rulings are not laws. Congress has had and continues to have the ability to pass national abortion laws.
According to the Court’s press release, Chief Justice Roberts has launched an official investigation into the source of the leaked document.
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Editor: Craig Carroll Peer Review Completed By 4 Individuals
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The article says, “Congress has had and continues to have the ability to pass national abortion laws.”
Actually Congress may have only limited ability to pass federal abortion laws, due to the Tenth Amendment, which says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Congress could probably pass a law saying no state can prohibit its citizens from traveling to another state for an abortion, based on the Privileges & Immunities Clause in the Fourteenth Amendment, but it’s not clear whether they could go beyond that.