“Compelling.” “Comprehensive.” “A tour de force.”
Abortion opponents saw everything they have hoped for in their decades-long partnership with the broader legal conservative movement in a draft Supreme Court majority opinion disclosed Monday that, if ultimately adopted by the court, would end nationwide abortion rights protections for Americans.
With all the caveats that the draft is not final and the vote count of a majority willing to overturn Roe v. Wade could always change, prominent members of the conservative legal world were thrilled with the approach that Justice Samuel Alito took in the document obtained by Politico after it apparently had been circulated among the justices in February.
“Justice Alito did a tour de force on the history of abortion law that just made it abundantly clear how absurd the idea is that abortion is a fundamental right, rooted in American history and Constitution, in any sense,” said Carrie Severino, the president of the conservative Judicial Crisis Network. “It’s so heartening to know that we finally have a majority of justices on the Supreme Court who recognize the legitimate way to interpret the Constitution.”
Politico published the draft opinion Monday night in a stunning breach of the norms of secrecy that surround the Supreme Court’s inner workings. Assuming the court was following its typical protocols, the justices would have privately taken a vote on their views on the abortion case in question – a lawsuit, known as Dobbs v. Jackson Women’s Health Organization challenging Mississippi’s 15-week ban – after its December oral arguments. Then a justice in the majority would have been assigned to take an initial stab at an opinion.
Until a formal opinion is released – likely in June – it will remain unknown how many more edits and changes to Alito’s reasoning will have been made to shore up a majority, or even if a majority will remain behind overruling Roe.
But longtime leaders of the anti-abortion movement gave full-throated approval of where Alito apparently wanted to take the court.
“If the draft opinion made public tonight is the final opinion of the court, we wholeheartedly applaud the decision,” Marjorie Dannenfelser – the president of Susan B. Anthony List, which supports anti-abortion politicians – said in a statement Monday.
“If this is the opinion of the Court, it will be one of the greatest opinions in Supreme Court history,” Republican Missouri Sen. Josh Hawley tweeted.
The 98-page document, which included 30 page appendix of 19th-century state abortion laws, was “compelling,” according to prominent anti-abortion lawyer Jim Bopp, and “seems to have hit every possible issue.”
“There are various parts that will … appeal to certain justices or people,” Bopp, who has served as the National Right to Life Committee’s chief lawyer since 1978, told CNN.
Alito called the Supreme Court’s 1973 holding in Roe – which, coupled with a 1992 decision affirming it, protects abortion rights nationwide up into fetal viability – ” egregiously wrong from the start,” of “exceptionally weak” reasoning and a decision that has “had damaging consequences.”
That biting language against Roe comes after Chief Justice John Roberts had floated, during December oral arguments, a compromise route that upheld the Mississippi law while somehow avoiding reversing Roe outright. (Lawyers for both sides in the case rejected the idea that the court could rule in Mississippi’s favor without dismantling Roe.)
“Roberts at oral argument at least was … open to the idea of a middle ground. And Justice Alito’s draft definitely draws a line short of that,” said Adam White, a Roe critic and legal scholar at the conservative think tank the American Enterprise Institute.
Impact of Donald Trump
That Roberts no longer holds the sway he did when he was, for a brief period the court’s median justice is a product of Republicans’ unrelenting focus on the judiciary. Social conservatives were willing to put former President Donald Trump in the White House because, in part, of promises he made about America’s highest court, which included a vow to choose Supreme Court nominees who would overrule Roe “automatically,” from a list of pre-selected candidates.
“He made pledges regarding judges that other Republican presidential nominees didn’t make,” said Michael New, a research associate at the Catholic University of America.
Trump’s first appointee, Justice Neil Gorsuch, replaced the late Justice Antonin Scalia, a fervent Roe critic whose vacancy had been held open by Senate Republicans in a risky 2016 gamble to block then-President Barack Obama’s nomination of Judge Merrick Garland.
Trump’s second Supreme Court choice, Justice Brett Kavanaugh, replaced Justice Anthony Kennedy, who had sided with liberals in some abortion cases. Conservative activists remained unified behind Kavanaugh in the face of sexual assault allegations (which the justice vehemently denied). The confirmation of Justice Amy Coney Barrett to replace the late liberal Justice Ruth Bader Ginsburg weeks before the 2020 election meant that a decision to overrule Roe would no longer rely on the support of Roberts, who’s shown increasing wariness of dramatic actions that could undermine public confidence in the court.
But the moment the Supreme Court appears to be on the cusp of traces its roots farther back than just the 2016 election. Disappointments with the votes of Republican appointees in the 1992 Planned Parenthood v. Casey ruling and other key abortion decisions, shaped a keen eye for hints that potential justices would adhere to a judicial philosophy that would lead them to a reversal of Roe.
“When President Reagan was president, and it was time for judicial nominations, he did not have a strong bench of conservative jurists to draw from,” New said. “That’s changed a lot in the past 30 to 40 years. … The investments we’ve made in developing a farm team of conservative judges, I think, has paid off.”
Still, those past disappointments have social conservatives on edge for yet another surprise decision that comes short of their hopes. Besides the risk of a waffling justice depriving Alito’s Roe reversal position of the five votes he needs, the final opinion will be scrutinized for what changes were made to keep the majority in tact.
The conservative legal push was aimed not just at overturning Roe, but also at embracing of originalist approach that focused on the words of the Constitution and what they meant when the language was adopted.
“There’s a lot of specific criticism of the Roe precedent, the way Roe was originally decided, the quality of the court’s reasoning, the quality of the court’s original sort of historical analysis,” White said of Alito’s draft. “But what you see, when you take an extra step back, is this is a pretty comprehensive originalist argument, in terms of beginning with the text.”