Justice Samuel Alito’s draft opinion that would overturn Roe v. Wade published Monday night would be the worst nightmare scenario for supporters of abortion rights.
Although December’s oral arguments looked grim for progressives, many still held out hope that when the justices retreated to their ornate conference room and gathered around the table to cast an initial tally, they would stop short of voting to overrule a decision from a half century ago. The thinking went that Chief Justice John Roberts – who floated a compromise position at oral arguments – would vote to uphold Mississippi’s 15-week ban but leave intact some federal right to abortion.
And the Chief, some thought, would be able to lure one other conservative justice to his position: Roe would be gutted, but there would be something left.
But it appears, if the draft opinion published by Politico is legitimate, that after that initial vote there was a solid five-vote majority – including three of former President Donald Trump’s appointees – to strike down Roe.
It took conservative Justice Samuel Alito, a nominee of former President George W. Bush, only five pages to show his hand:
Roe, he said, “must be overruled.”
Alito began where critics of Roe always begin: “The Constitution makes no reference to abortion.”
Supporters of abortion rights were stunned, hoping the draft was simply that and that it did not represent the views of the majority of justices. Votes and reasoning and language often change during the months-long drafting process.
“What we do know is that if the Supreme Court overturns Roe v. Wade it will be an unjustified, unprecedented stripping away of a guaranteed right that has been in place for nearly five decades,” Nancy Northup, president of the Center for Reproductive Rights, said in a statement late Monday. “It would represent the most damaging setback to the rights of women in the history of our country.”
In the draft, Alito batted away arguments that other provisions of the Constitution dealing with privacy or liberty might be relied upon to uphold a right to an abortion.
He said that while defenders of Roe point to the Due Process Clause of the 14th Amendment, they are mistaken.
That’s because, according to Alito, while the Due Process Clause might guarantee some rights that aren’t mentioned explicitly in Constitution, such rights have to be “deeply rooted in this nation’s history and tradition.”
“The right to abortion does not fall within this category,” he said.
In fact, according to Alito, Roe was “egregiously wrong” from the start and its reasoning is “exceptionally weak.”
Alito concluded that it’s time the issue went back to the states: “That is what the Constitution and the rule of law demand.”
“Our Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated,” he added.
That’s a dire conclusion for supporters of abortion rights because nearly half the states have laws on the book, or soon will, banning abortion.
Many – especially liberals like Justice Elena Kagan – warn of the dangers of overturning precedent, a move that shakes the stability of the law. At oral arguments the justices jousted over that point with conservative pointing to examples when the court moved to wipe away a prior opinion.
Alito addressed the point in his draft.
“Stare Decisis,” he said, does not “compel unending adherence to Roe’s abuse of judicial authority” and he highlighted constitutional decisions that have overruled prior precedents including Brown v. Board of Education where the court repudiated the separate but equal doctrine that allowed states to maintain racially segregated schools and other facilities.
In a footnote that took up a page and a half, Alito listed other decisions that had been overruled.
And he said the courts could never ultimately settle the issue of abortion that has been at the center of American politics for decades. Roe had “short circuited” the democratic process, Alito wrote.
“Far from bringing about a national settlement of the abortion issue,” he said, Roe “enflamed the debate and deepened division.”
“The inescapable conclusion” in the eyes of Alito “is that a right to an abortion is not deeply rooted in the Nation’s history and traditions.”
It has, instead, always been on a “collision course” with the Constitution.
He also distinguished Roe from past decisions involving matters such a sexual relations, contraception and marriage. He said abortion is “fundamentally different” because it destroys fetal life.
For Alito, it’s time for the court to get out.
“This court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling people to move on,” he said.
Court watchers on both sides of the issue were left flabbergasted, by the leak, the breadth of the opinion and the fact that if it holds, it will forever change the landscape of women’s reproductive rights.
Alito closed by writing: “We end this opinion where we began.”
“The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion.” Roe, he said, “arrogated that authority.”
“It is so ordered.”