A draft opinion penned by Supreme Court Justice Samuel Alito indicates that Roe v. Wade, the landmark case that codified abortion rights in 1973, will soon be invalidated.
“We hold that Roe and [Planned Parenthood v.] Casey must be overruled,” Alito writes, referring to a 1992 decision that reaffirmed Roe.
The draft opinion was written in February and published by POLITICO Monday night. It will likely be revised and will not have the force of law until it is formally published by the Court in late June or early July. However, its general sentiment is unmistakeable and represents a long-sought victory for the conservative movement, which saw its judicial influence heightened during the Trump administration.
“Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences, ” Alito writes in the draft.
“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” Alito adds.
Once the decision is published, the Center for Reproductive Rights anticipates that legislatures in 24 states will likely prohibit or severely restrict access to abortions: Alabama, Arizona, Arkansas, Georgia, Idaho, Indiana, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia and Wisconsin.
“Without access to legal abortion,” reports The New York Times, “illegal and dangerous abortions are likely to continue. And the burden is likely to disproportionately fall on poor women who are unable to drive to other states for the procedure, even when their health depends on it.”
Alito’s decision was prompted by a legal challenge to a Mississippi law that bans abortions after the 15th week of pregnancy (existing law allows the procedure until around the 22nd week). POLITICO reports:
A person familiar with the court’s deliberations said that four of the other Republican-appointed justices – Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – had voted with Alito in the conference held among the justices after hearing oral arguments in December, and that line-up remains unchanged as of this week.
The three Democratic-appointed justices – Stephen Breyer, Sonia Sotomayor and Elena Kagan – are working on one or more dissents, according to the person. How Chief Justice John Roberts will ultimately vote, and whether he will join an already written opinion or draft his own, is unclear.
“The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions,” Alito writes in the draft. “On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.”
Alito seems to recognize that upending 50 years of settled law will be controversial. But he argues that stare decisis – that is, following the Court’s precedents – is not always necessary.
“We have long recognized,” Alito writes, “that stare decisis is ‘not an inexorable command,’ and it ‘is at its weakest when we interpret the Constitution.’ It has been said that it is sometimes more important that an issue ‘be settled than that it be settled right.’ But when it comes to the interpretation of the Constitution — the ‘great charter of our liberties,’ which was meant ‘to endure through a long lapse of ages,’ we place a high value on having the matter ‘settled right.’”
Democrats criticized Alito’s draft. They pointed out that Justice Brett Kavanaugh called Roe “settled law” during his 2018 confirmation hearing.
“If the report is accurate, the Supreme Court is poised to inflict the greatest restriction of rights in the past fifty years — not just on women but on all Americans,” read a joint statement from Senate Majority Leader Chuck Schumer and House Speaker Nancy Pelosi. “Several of these conservative Justices, who are in no way accountable to the American people, have lied to the U.S. Senate, ripped up the Constitution and defiled both precedent and the Supreme Court’s reputation — all at the expense of tens of millions of women who could soon be stripped of their bodily autonomy and the constitutional rights they’ve relied on for half a century.”
Outside of the legal merits, striking down Roe is deeply unpopular. The Associated Press reports:
An AP-NORC poll in December found that Democrats increasingly see protecting abortion rights as a high priority for the government.
Other polling shows relatively few Americans want to see Roe overturned. In 2020, AP VoteCast found that 69% of voters in the presidential election said the Supreme Court should leave the Roe v. Wade decision as is; just 29% said the court should overturn the decision. In general, AP-NORC polling finds a majority of the public favors abortion being legal in most or all cases.
The Washington Post adds:
The report suggesting Roe’s impending demise sparked immediate reactions on Capitol Hill, with many on the left calling for legislative action to preserve abortion rights nationally.
“Congress must pass legislation that codifies Roe v. Wade as the law of the land in this country NOW,” Sen. Bernie Sanders (I-Vt.) wrote on Twitter on Monday night, calling for an end to the Senate’s filibuster rule to enact such a bill with a simple majority.
In fact, a Democratic bill that would have done just that garnered only 46 votes in February, thanks to the opposition of Sen. Joe Manchin III (D-W.Va.) and the absences of several other Democrats.
While it is possible that a narrower bill could attract some GOP moderates such as Sen. Susan Collins (Maine) and garner a majority, attempts to eliminate the 60-vote supermajority threshold have persistently fallen flat in the current Senate, which is split 50-50 between the party caucuses.