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4 things we know, and one big thing we don’t, on the draft opinion overruling Roe v. Wade

Justice Samuel Alito’s leaked opinion is a full-bore attack on the right to an abortion.

An activist with the Center for Popular Democracy Action holds a photo of Justice Samuel Alito during a demonstration in front of the Supreme Court on December 1, 2021, when the Court heard arguments in Dobbs v. Jackson Women’s Health Organization.
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Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.

On Monday evening, Politico reported what may be a completely unprecedented scoop. It does not simply claim that “the Supreme Court has voted to strike down the landmark Roe v. Wade decision” that established a constitutional right to an abortion, it also posted a 98-page draft opinion signed by Justice Samuel Alito. The case is Dobbs v. Jackson Women’s Health Organization.

There may be no modern precedent for a leak of this magnitude. The Court normally operates under a strict code of silence until the moment a decision is released. Supreme Court law clerks even have a special dining room in the Court’s cafeteria, where they can discuss cases over lunch without risking anyone overhearing those conversations. Though some details about the justices’ internal deliberations do occasionally leak — including the result of the original Roe v. Wade decision — I’m aware of no precedent for an entire draft opinion being published before the decision is final.

If the draft opinion, or one like it, becomes law, abortion would immediately or very quickly become inaccessible in at least 22 states that already have near-total bans or very early-term bans on the books. As Vox’s Anna North explained in 2020 when the newest conservative justice joined the Court, the overturning of Roe and subsequent state-level bans likely won’t mean the end of abortion — just legal abortion. And, North wrote, that will have “devastating consequences for many people, especially low-income Americans and people of color in red states.”

On Tuesday, Chief Justice John Roberts confirmed the draft is authentic, as part of a broader statement from the Supreme Court. This confirmation wasn’t particularly surprising — the draft bears many hallmarks of legitimacy. The lengthy opinion comprehensively summarizes the conservative arguments against Roe, with citations to centuries worth of legal treatises, scholarly articles, and old statutes and case law. It’s written in an often-snide tone that is recognizably Alito, and includes multiple appendices summarizing old state abortion laws — some of which are nearly 200 years old.

Much is still unclear — again, we don’t know if Alito will keep his majority for overturning Roe outright, whether the contours of the opinion will change, or whether other justices will write concurring or dissenting opinions. As the Court said in its statement Tuesday, the draft opinion, while authentic, “does not represent a decision by the Court or the final position of any member.”

But one thing is certain. Conservative legal elites have fantasized about banning abortions for decades, and the Court’s new 6-3 conservative supermajority has repeatedly signaled it’s more than willing to overturn the 50-year-old precedent established in Roe.

The one big thing we don’t know is whether Alito will keep his majority

While we now know that this opinion is an authentic draft, authored by Justice Alito and leaked by some internal Court source to the press, there is one big thing that we do not yet know about this opinion: whether it will bear any resemblance to the final decision that the Court is expected to release by late June.

After the Court hears oral arguments in a case, the justices meet in a conference and cast their initial votes. The most senior justice in the majority then chooses one of their colleagues to author the opinion, and that author produces an initial draft before circulating it to the Court. No justice’s vote is final, however, until the decision is officially handed down. And justices do sometimes change their mind after a draft opinion is circulated.

Shortly after Politico published the leaked opinion, moreover, CNN reported that Roberts — one of the Court’s six Republicans — did not vote to overrule Roe in its entirety. So there were most likely only five initial votes to go that far, and Alito could lose his majority if just one of the Court’s other Republicans breaks ranks.

That said, the Court has given every outward sign that it intends to overrule Roe v. Wade. At oral arguments last December, five justices — Alito plus Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — appeared eager to overrule this landmark decision. Less than two weeks later, in Whole Woman’s Health v. Jackson (2021) the Court effectively permitted states to ban abortions, so long as state employees have no role in enforcing this ban and it is enforced solely through private lawsuits.

All five of the Court’s most conservative members are longtime opponents of abortion — some of whom spoke out quite vocally against Roe before they became justices.

Even Roberts’s reported position — seeking to uphold Mississippi’s 15-week ban that’s at issue in Dobbs — would contravene the rule announced in Planned Parenthood v. Casey (1992), which allows abortion up to the point when a fetus can live outside the womb.

It is exceedingly likely, in other words, that there are five votes on this Supreme Court to overrule Roe.

Four things we do know about Alito’s draft opinion

Having laid out that there is some uncertainty about whether Alito will keep his majority, the leaked opinion is quite revealing. While drawing a few fences around the broader conservative legal project, it nevertheless takes a maximalist approach to Roe, overruling it in its entirety, and doing so using reasoning that will be very familiar to anyone who has followed the legal arguments anti-abortion activists typically raise against Roe.

1) This is a maximalist opinion

For many years, largely as a bid to convince the relatively moderate conservative Justice Anthony Kennedy to permit as many abortion restrictions as possible, many abortion opponents did not explicitly ask the Supreme Court to overrule Roe. Instead, they urged the Court to uphold restrictions that would make it so difficult or expensive to operate an abortion clinic that facilities in anti-abortion states would simply shut down.

But Kennedy is no longer on the Court. And Jackson already achieved the goal of permitting states to shut down abortion clinics by imposing such severe costs on those clinics that they could not remain open. There’s only one more frontier left for abortion opponents to cross: a Supreme Court decision explicitly overruling Roe. And Alito’s opinion skips gleefully across that frontier.

Roe was egregiously wrong from the start,” Alito claims in the draft opinion, which holds “that Roe and Casey must be overruled.”

2) The opinion relies on arguments that will be familiar to anyone who has followed the legal debate over abortion

Before joining the Supreme Court, then-Judge Brett Kavanaugh gave two very clear signs that, if appointed to the high court, he would vote to overrule Roe.

During his 2018 confirmation hearing, Sen. Ted Cruz (R-TX) asked Kavanaugh how he would determine which “unenumerated rights” — that is rights, like abortion, that are not specifically mentioned in the Constitution but are nonetheless protected by that document — are valid. Kavanaugh replied that “all roads lead to the Glucksberg test as the test that the Supreme Court has settled on as the proper test” to determine the scope of these unenumerated rights.

Glucksberg” is a reference to Washington v. Glucksberg (1997), which held that only unenumerated rights that are “deeply rooted in this Nation’s history and tradition,” or “implicit in the concept of ordered liberty,” are protected by the Constitution.

About a year earlier, Kavanaugh gave a speech to the conservative American Enterprise Institute, where he stated explicitly how he would apply this Glucksberg test to the right to an abortion. “Even a first-year law student could tell you that the Glucksberg’s approach to unenumerated rights was not consistent with the approach of the abortion cases such as Roe vs. Wade in 1973,” the future justice told the conservative think tank.

Alito’s reasoning largely tracks the analysis Kavanaugh offered on these two occasions. He endorses the Glucksberg framework as the sole acceptable method of determining which unenumerated rights are protected by the Constitution, then spends a considerable amount of his opinion attacking the historical foundations of abortion rights.

The draft opinion also relies heavily on a traditional conservative argument that overruling Roe promotes democracy by allowing each state to decide how it will regulate abortion. He quotes a 30-year-old opinion from the late Justice Antonin Scalia, for example, which stated that “the permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”

These appeals to democracy would be more persuasive if Alito had shown any concern about democracy in any other context whatsoever. Among other things, Alito is the author of two separate decisions gutting key provisions of the Voting Rights Act. And he joined a 2019 decision that ordered federal courts not to block partisan gerrymanders.

So, while Alito’s draft Dobbs opinion would give state legislatures broad authority to regulate or ban abortion, Alito’s voting rights opinions make it much harder for voters to actually have a meaningful say in who sits in those legislatures.

3) Alito’s opinion draws some fences around the conservative legal project

During the Obama administration, many conservative lawyers started talking openly about reviving decisions such as Lochner v. New York (1905), a long-ago-overruled decision that struck down a state law preventing bakery owners from overworking their workers. The reasoning in Lochner also formed the basis for other decisions striking down minimum wage laws, laws protecting the right to unionize, and similarly progressive labor legislation.

If you are a liberal, the thinnest silver lining in Alito’s draft opinion is that it wholeheartedly rejects this effort to bring cases like Lochner back from the dead. Lochner relied on an interpretive methodology that is similar to the one the Court used in Roe, and Alito describes the Lochner decision as “discredited.”

Later in the opinion, Alito endorses the Court’s decision to overrule Lochner in West Coast Hotel v. Parrish (1937), and he praises West Coast Hotel for overruling decisions that “wrongly removed an issue from the people and the democratic process.”

That’s not much of a silver lining for liberals, but the Court’s Republican majority has seemed eager to move fast and break things since it grew from five justices to six at the end of the Trump administration. Alito’s rejection of Lochner is an important sign that there may be limits to what even this Court is willing to do.

4) If Alito prevails, abortion will swiftly be illegal in at least 18 states

At least 18 states currently have total or near-total abortion bans on the books. Some of these laws were enacted before Roe was decided, while others were enacted more recently. Some of these laws contain narrow exceptions to protect individuals who need an abortion to save their life or to avoid a permanent disability, but not all contain exceptions for non-life-threatening medical conditions. Some of these bans will also forbid abortion even when a pregnancy results from rape.

Additionally, four other states have laws banning abortion after the sixth week of pregnancy.

If Roe is overruled, many of these laws will take effect immediately. Others will take effect days, weeks, or perhaps a month after Roe is overruled. But, by the end of the summer, it is likely they will be in full effect.

Again, this fate is not yet etched in stone. It is still possible that one of the five most conservative justices will balk at Alito’s opinion and maybe join the chief justice in taking a less maximalist approach. Realistically, however, the conservative legal movement — and the Republican Party more broadly — has dreamed of overruling Roe for decades. And conservatives now have a supermajority on the Supreme Court.

It is highly likely, in other words, that the Court’s final opinion will look a whole lot like Alito’s first draft.