Supreme Court Confirms Authenticity of Leaked Draft Opinion in Abortion Case - What Does It Say?

What’s the story?

• According to a report by Politico on Monday, a leaked draft of a Supreme Court majority opinion authored by Justice Samuel Alito indicates the Court may be prepared to overturn longstanding abortion precedents under Roe v. Wade and Planned Parenthood v. Casey and return the issue to the states when the Court decides a pending case regarding Mississippi’s 15-week abortion ban.
• While there have in the past been leaks of internal Court deliberations, and a few historical instances where outcomes of a case were released prior to the opinion, the leak of a full draft opinion along with the votes from the Court’s conference is unprecedented. 
• On Tuesday morning, the Supreme Court issued a press release stating, “Although the document described in yesterday’s reports is authentic, it does not represent a decision by the Court or the final position of any member on the issues in the case.” Chief Justice John Roberts said in a statement that the Marshal of the Court has been ordered to investigate the leak and added: 

“To the extent  this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed. The work of the Court will not be affected in any way. We at the Court are blessed to have a workforce ― permanent employees and law clerks alike ― intensely loyal to the institution and dedicated to the rule of law. Court employees have an exemplary and important tradition of respecting the confidentiality of the judicial process and upholding the trust of the Court. This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here.”

• It’s unclear from the draft opinion, which is labeled as a “1st Draft” and dated February 10th, whether at least four other justices will in fact support it as a final opinion. Politico reported that four other Republican-appointed justices ― Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett ― voted with Alito. CNN reported that Chief Justice John Roberts doesn’t support completely overturning the precedents, but is willing to uphold Mississippi’s 15-week abortion ban.
• After oral arguments in a case, justices typically take a vote on the issues before them and begin to draft opinions that are then shared so that other justices can debate the matter further and suggest changes they would support. As the majority opinion takes shape, concurring and dissenting opinions are drafted and the majority opinion is often revised to address the dissents before the final opinion is published. 
• If the draft opinion turns out to be legitimate and is ultimately backed by at least five justices to become the Supreme Court’s opinion, it would be the Court’s most significant reversal of a precedent since Brown v. Board of Education (1954) held that racial segregation as permitted under Plessy v. Ferguson (1896) was unconstitutional. 
• Here’s a look at some of the key passages of the alleged draft majority opinion:

Key passages of the draft opinion

• Justice Samuel Alito's draft opinion began by noting the political divide on the issue of abortion and outlining his view of the history of abortion policy and jurisprudence: 

Abortion presents a profound moral issue on which Americans hold sharply conflicting views. Some believe fervently that a human person comes into being at conception and that abortion ends an innocent life. Others feel just as strongly that any regulation of abortion invades a woman’s right to control her own body and prevents women from achieving full equality. Still others in a third group think that abortion should be allowed under some but not all circumstances, and those within this group hold a variety of views about the particular restrictions that should be imposed.

For the first 185 years after the adoption of the Constitution, each State was permitted to address this issue in accordance with the views of its citizens. Then, in 1973, this Court decided Roe v. Wade. Even though the Constitution makes no mention of abortion, the Court held that it confers a broad right to obtain one. It did not claim that American law or the common law had ever recognized such a right, and its survey of history ranged from the constitutionally irrelevant (e.g., its discussion of abortion in antiquity) to the plainly incorrect (e.g., its assertion that abortion was probably never a crime under the common law). After cataloguing a wealth of other information having no bearing on the meaning of the Constitution, the opinion concluded with a numbered set of rules much like those that might be found in a statute enacted by a legislature.

Under this scheme, each trimester of pregnancy was regulated differently, but the most critical line was drawn at roughly the end of the second trimester, which, at the time, corresponded to the point at which a fetus was thought to achieve “viability”, i.e., the ability to survive outside the womb. Although the Court acknowledged that States had a legitimate interest in protecting “potential life,” it found that this interest could not justify any restriction on previability abortions. The Court did not explain the basis for this line, and even abortion supporters have found it hard to defend Roe’s reasoning. One prominent constitutional scholar wrote that he “would vote for a statute very much like the one the Court end[ed] up drafting” if he were “a legislator,” but his assessment of Roe was memorable and brutal: Roe was “not constitutional law” at all and gave almost no sense of an obligation to try to be.

At the time of Roe, 30 States still prohibited abortion at all stages. In the years prior to that decision, about a third of the States had liberalized their laws, but Roe abruptly ended that political process. It imposed the same highly restrictive regime on the entire Nation, and it effectively struck down the abortion laws of every single State. As Justice Byron White aptly put it in his dissent, the decision represented the “exercise of raw judicial power,” and it sparked a national controversy that has embittered our political culture for a half-century.

• Alito’s draft also discussed Casey, which sought to uphold Roe under the doctrine of stare decisis (letting precedent stand) but also “did a fair amount of overruling” as the justice noted:

Several important abortion decisions were overruled in toto, and Roe itself was overruled in part. Casey threw out Roe’s trimester scheme and substituted a new rule of uncertain origin under which States were forbidden to adopt any regulation that imposed an “undue burden” on a woman’s right to have an abortion. The decision provided no clear guidance about the difference between a “due” and an “undue” burden. But the three Justices who authored the controlling opinion “call[ed] the contending sides of a national controversy to end their national division” by treating the Court’s decision as the final settlement of the question of the constitutional right to abortion.

• Alito’s draft opinion went on to state that Roe and Casey must be overturned:

We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely―the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”

The right to an abortion does not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy. The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of “liberty.” Roe’s defenders charcterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called “fetal life” and what the law now before us describes as an “unborn human being.”

• The draft opinion noted that contrary to the argument made by the Biden administration’s solicitor general that upholding the Mississippi law could undercut other constitutional rights, the majority opinion would do no such thing and would apply solely to abortion:

Unable to show concrete reliance on Roe and Casey themselves, the Solicitor General suggests that overruling those decisions would “threaten the Court’s precedents holding that the Due Process Clause protects other rights.” That is not correct for reasons we have already discussed. As even the Casey plurality recognized “[a]bortion is a unique act” because it terminates “life or potential life.” 505 U.S., at 852; see also Roe, 410 U.S., at 159 (abortion “is inherently different from marital intimacy,” “marriage,” or “procreation”). And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.

• The draft opinion emphasized that it’s the Court’s role to evaluate the law and not political considerations or public opinion as it decides cases such as this:

We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision. We can only do our job, which is to interpret the law, apply longstanding principles of stare decisis, and decide this case accordingly. We therefore hold that the Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.

• Alito’s draft opinion concluded:

We end this opinion where we began. Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.

RELATED READING

• Supreme Court Hears Arguments in Mississippi Abortion Case (12/1/21)
• Mississippi Asks Supreme Court to Overrule Roe v. Wade in Upcoming Abortion Case (7/23/21)

— Eric Revell

(Photo Credit: iStock.com / clintcpopineau)