Roe’s “survey of history ranged from the constitutionally irrelevant to the plainly incorrect,” Alito wrote. He called its reasoning “exceptionally weak” and declared that the decision has had “damaging consequences.”
The landmark abortion case was decided 7-2 in 1973, with five Republican appointees joining two justices nominated by Democratic presidents. It was almost immediately a subject of controversy.
The late Supreme Court Justice Ruth Bader Ginsburg found fault with the focus on privacy in Roe as opposed to gender equality. She noted in a lecture at New York University in 1992 that Roe tried to do too much, too fast, leaving it vulnerable to fierce attacks.
“Doctrinal limbs too swiftly shaped may prove unstable,” she said at the time.
In the draft, Alito himself quotes Ginsburg, as well as liberal Harvard Law professor Laurence Tribe, who at certain points in his career has taken issue with the reasoning in Roe and its impact on the political process.
Charles Fried, a constitutional law professor at Harvard and the United States solicitor general under President Ronald Reagan, has long criticized the majority opinion in Roe v. Wade.
“There are two stunning weaknesses in Roe: its focus on the right to privacy and its historical survey of abortion practice in the United States,” said Fried in an interview Tuesday.
But Fried, who argued against the constitutional right to abortion before the Supreme Court in 1989, said the 1992 ruling in Planned Parenthood of Southeastern Pennsylvania v. Casey gave the Roe ruling a firmer constitutional basis. If Roe was a new house built on a shaky foundation, then Casey was the reinforcement that added support beams.
In a 5-4 decision, the court reaffirmed in Casey the core abortion right established in Roe but allowed for modifications. Until the point of fetal viability, which occurs around 24 weeks, the state cannot impose an “undue burden” on the right to end a pregnancy. States have, however, been able to impose regulations such as waiting periods and parental consent rules for minors. But a pre-viability ban on abortion, as Mississippi is seeking to do, is prohibited under current federal law.
Fried called the leaked draft decision and its overruling of Roe an “act of constitutional vandalism” and criticized Alito’s opinion for not “even really bothering with addressing Casey.”
“It really fails to come to terms with the heart of Casey, which exists on a different moral and constitutional foundation that highlights personal liberty, the importance of procreation, and also the constraints and anxieties that a mother who carries a child to full term must bear,” said Fried.
The draft opinion recognizes that overruling a constitutional precedent is “a serious matter” but likens Roe to Plessy v. Ferguson, the odious, landmark 1896 case that permitted racial segregation under the concept of “separate but equal.”
“It was ‘egregiously wrong’ on the day it was decided,” Alito wrote of Plessy v. Ferguson in the leaked draft. “It should have been overruled at the earliest opportunity. Roe was also egregiously wrong and deeply damaging.”
The draft repeatedly points out that the right to an abortion is not mentioned within the Constitution. But Suffolk Law professor Rosanna Cavallaro said it would be “idiotic” for the court to jettison Roe because the word “abortion” does not appear in the Constitution.
“Are you really announcing as a constitutional principle that there has to be words in the text in order for those rights to exist?” said Cavallaro. “What impact would that have on women and people of color? Because the Constitution was for white men.”
Still, the overarching decision to strike down Roe does not surprise legal experts who watched the fiery oral arguments unfold at the Supreme Court last winter.
“This was telegraphed to us. Each of the justices aligned with Alito made it clear during oral arguments that they were comfortable with the idea of overturning Roe and were floating justifications for that,” said Keith Werhan, a professor of constitutional law at Tulane Law School in New Orleans.
“While the decision is not surprising, it is still unsettling to see a very well-established and reaffirmed protection retrenched in this way,” continued Werhan.
Perhaps the biggest curveball is the leak itself. Such disclosures are commonplace within the White House and Congress, where policy makers aim to advance agendas through tips, but they are a rarity in the Supreme Court. No draft ruling has been disclosed publicly while a case was still pending.
Boston College Law professor Kent Greenfield, who clerked for now retired Supreme Court Justice David Souter in the 1990s, said the leak is symptomatic of the emotional and intellectual battle now underway among the justices on the issue of abortion rights.
“The substance of the [Alito draft] opinion is so devastating to abortion rights, the fact that someone leaked indicated to me that the fight over this inside the court must be tremendous. So much so that someone, whether it’s a clerk, a secretary, an office manager, or a justice him or herself . . . are willing to risk their entire career,” said Greenfield.
The court confirmed on Tuesday the authenticity of the leaked draft, which was dated from February. Chief Justice John Roberts said he has ordered an investigation into what he called an “egregious breach of trust.” A court statement emphasized that the draft is not the justices’ final word.
Opinions often change in ways big and small in the drafting process, and a final ruling in the Mississippi case, Dobbs v. Jackson, is not expected until the end of the court’s term in late June or early July. Given the historic nature of the leak, it is hard to say if the premature disclosure of the draft will have any effect on the language of the opinion.
“Justice Alito will want to write as bulletproof an opinion as he can. If he’s receiving feedback, either through the press or informally, he may adjust the opinion to account for arguments that he’s finding out there,” said Werhan. “It’s very disconcerting. It once again is a blow for the attempt at insulating the court from politics.”
Until the official ruling, abortion remains legal in every state. Should the court follow through with some version of the opinion by Alito and Roe be reversed, a patchwork of state laws would emerge across the country, with abortion in the South and Midwest likely being most restricted.
Congress could step in and set a single national policy again, a possibility that heightens the stakes of the upcoming midterm elections. If the Republicans retake power in Washington, they could enact legislation that imposes a nationwide ban on abortion, a policy that the Washington Post reports has already emerged as a centerpiece of potential 2024 Republican presidential bids.
“If the court does overturn Roe, it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose,” President Biden said Tuesday while boarding Air Force One. “And it will fall on voters to elect pro-choice officials this November. At the federal level, we will need more pro-choice senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law.”
Tribe, the famed Harvard legal scholar whose name is evoked several times in the draft opinion, raised the possibility of wider implications the nation could face if Roe falls.
Tribe wrote in a Twitter post Monday night: “If the Alito opinion savaging Roe and Casey ends up being the Opinion of the Court, it will unravel many basic rights beyond abortion and will go further than returning the issue to the states: It will enable a GOP Congress to enact a nationwide ban on abortion and contraception.”
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