POLITICO received a copy of the draft opinion from a person familiar with the court’s proceedings in the Mississippi case along with other details supporting the authenticity of the document. The draft opinion runs 98 pages, including a 31-page appendix of historical state abortion laws. The document is replete with citations to previous court decisions, books and other authorities, and includes 118 footnotes. The appearances and timing of this draft are consistent with court practice.
The disclosure of Alito’s draft majority opinion – a rare breach of Supreme Court secrecy and tradition around its deliberations – comes as all sides in the abortion debate are girding for the ruling. Speculation about the looming decision has been intense since the December oral arguments indicated a majority was inclined to support the Mississippi law.
Under longstanding court procedures, justices hold preliminary votes on cases shortly after argument and assign a member of the majority to write a draft of the court’s opinion. The draft is often amended in consultation with other justices, and in some cases the justices change their votes altogether, creating the possibility that the current alignment on Dobbs v. Jackson Women’s Health Organization could change.
The chief justice typically assigns majority opinions when he is in the majority. When he is not, that decision is typically made by the most senior justice in the majority.
‘Exceptionally weak’
A George W. Bush appointee who joined the court in 2006, Alito argues that the 1973 abortion rights ruling was an ill-conceived and deeply flawed decision that invented a right mentioned nowhere in the Constitution and unwisely sought to wrench the contentious issue away from the political branches of government.
Alito’s draft ruling would overturn a decision by the New Orleans-based 5th Circuit Court of Appeals that found the Mississippi law ran afoul of Supreme Court precedent by seeking to effectively ban abortions before viability.
Roe’s “survey of history ranged from the constitutionally irrelevant to the plainly incorrect,” Alito continues, adding that its reasoning was “exceptionally weak,” and that the original decision has had “damaging consequences.”
“The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions,” Alito writes.
Alito approvingly quotes a broad range of critics of the Roe decision. He also points to liberal icons such as the late Justice Ruth Bader Ginsburg and Harvard Law Professor Laurence Tribe, who at certain points in their careers took issue with the reasoning in Roe or its impact on the political process.
Alito’s skewering of Roe and the endorsement of at least four other justices for that unsparing critique is also a measure of the court’s rightward turn in recent decades. Roe was decided 7-2 in 1973, with five Republican appointees joining two justices nominated by Democratic presidents.
The overturning of Roe would almost immediately lead to stricter limits on abortion access in large swaths of the South and Midwest, with about half of the states set to immediately impose broad abortion bans. Any state could still legally allow the procedure.
“The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion,” the draft concludes. “Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”
The draft contains the type of caustic rhetorical flourishes Alito is known for and that has caused Roberts, his fellow Bush appointee, some discomfort in the past.
