Supreme Court has Voted to Overturn Abortion Rights, Draft Opinion Shows

The Supreme Court has voted to strike down the landmark Roe v. Wade decision, according to an initial draft majority opinion written by Justice Samuel Alito circulated inside the court and obtained by POLITICO.

The draft opinion is a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision — Planned Parenthood v. Casey — that largely maintained the right. “Roe was egregiously wrong from the start,” Alito writes.

“We hold that Roe and Casey must be overruled,” he writes in the document, labeled as the “Opinion of the Court.” “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

Deliberations on controversial cases have in the past been fluid. Justices can and sometimes do change their votes as draft opinions circulate and major decisions can be subject to multiple drafts and vote-trading, sometimes until just days before a decision is unveiled. The court’s holding will not be final until it is published, likely in the next two months.

The immediate impact of the ruling as drafted in February would be to end a half-century guarantee of federal constitutional protection of abortion rights and allow each state to decide whether to restrict or ban abortion. It’s unclear if there have been subsequent changes to the draft.

No draft decision in the modern history of the court has been disclosed publicly while a case was still pending. The unprecedented revelation is bound to intensify the debate over what was already the most controversial case on the docket this term.

The draft opinion offers an extraordinary window into the justices’ deliberations in one of the most consequential cases before the court in the last five decades. Some court-watchers predicted that the conservative majority would slice away at abortion rights without flatly overturning a 49-year-old precedent. The draft shows that the court is looking to reject Roe’s logic and legal protections.

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 document, labeled as a first draft of the majority opinion, includes a notation that it was circulated among the justices on Feb. 10. If the Alito draft is adopted, it would rule in favor of Mississippi in the closely watched case over that state’s attempt to ban most abortions after 15 weeks of pregnancy.

On Tuesday, after this article was published, Roberts confirmed the authenticity of the draft opinion and said he was ordering an investigation into the disclosure.

“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,” Roberts pledged in a written statement. “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.”

Roberts also stressed that the draft opinion “does not represent a decision by the Court or the final position of any member on the issues in the case.” The court spokesperson had declined comment pre-publication.

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 long-standing 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.

At times, Alito’s draft opinion takes an almost mocking tone as it skewers the majority opinion in Roe, written by Justice Harry Blackmun, a Richard Nixon appointee who died in 1999.

Roe expressed the ‘feel[ing]’ that the Fourteenth Amendment was the provision that did the work, but its message seemed to be that the abortion right could be found somewhere in the Constitution and that specifying its exact location was not of paramount importance,” Alito writes.

Alito declares that one of the central tenets of Roe, the “viability” distinction between fetuses not capable of living outside the womb and those which can, “makes no sense.”

In several passages, he describes doctors and nurses who terminate pregnancies as “abortionists.”

When Roberts voted with liberal jurists in 2020 to block a Louisiana law imposing heavier regulations on abortion clinics, his solo concurrence used the more neutral term “abortion providers.” In contrast, Justice Clarence Thomas used the word “abortionist” 25 times in a solo dissent in the same case.

Alito’s use of the phrase “egregiously wrong” to describe Roe echoes language Mississippi Solicitor General Scott Stewart used in December in defending his state’s ban on abortions after 15 weeks of pregnancy. The phrase was also contained in an opinion Kavanaugh wrote as part of a 2020 ruling that jury convictions in criminal cases must be unanimous.

In that opinion, Kavanaugh labeled two well-known Supreme Court decisions “egregiously wrong when decided”: the 1944 ruling upholding the detention of Japanese Americans during World War II, Korematsu v. United States, and the 1896 decision that blessed racial segregation under the rubric of “separate but equal,” Plessy v. Ferguson.

The high court has never formally overturned Korematsu, but did repudiate the decision in a 2018 ruling by Roberts that upheld then-President Donald Trump’s travel ban policy.

The legacy of Plessy v. Ferguson

Plessy remained the law of the land for nearly six decades until the court overturned it with the Brown v. Board of Education school desegregation ruling in 1954.

Quoting Kavanaugh, Alito writes of Plessy: “It was ‘egregiously wrong,’ on the day it was decided.”

Alito’s draft opinion includes, in small type, a list of about two pages’ worth of decisions in which the justices overruled prior precedents — in many instances reaching results praised by liberals.

The implication that allowing states to outlaw abortion is on par with ending legal racial segregation has been hotly disputed. But the comparison underscores the conservative justices’ belief that Roe is so flawed that the justices should disregard their usual hesitations about overturning precedent and wholeheartedly renounce it.

Alito’s draft opinion ventures even further into this racially sensitive territory by observing in a footnote that some early proponents of abortion rights also had unsavory views in favor of eugenics.

“Some such supporters have been motivated by a desire to suppress the size of the African American population,” Alito writes. “It is beyond dispute that Roe has had that demographic effect. A highly disproportionate percentage of aborted fetuses are black.”

Alito writes that by raising the point he isn’t casting aspersions on anyone. “For our part, we do not question the motives of either those who have supported and those who have opposed laws restricting abortion,” he writes.

Alito also addresses concern about the impact the decision could have on public discourse. “We cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work,” Alito writes. “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.”

In the main opinion in the 1992 Casey decision, Justices Sandra Day O’Connor, Anthony Kennedy and Davis Souter warned that the court would pay a “terrible price” for overruling Roe, despite criticism of the decision from some in the public and the legal community.

“While it has engendered disapproval, it has not been unworkable,” the three justices wrote then. “An entire generation has come of age free to assume Roe‘s concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions; no erosion of principle going to liberty or personal autonomy has left Roe‘s central holding a doctrinal remnant.”

When Dobbs was argued in December, Roberts seemed out of sync with the other conservative justices, as he has been in a number of cases including one challenging the Affordable Care Act.

At the argument session last fall, Roberts seemed to be searching for a way to uphold Mississippi’s 15-week ban without completely abandoning the Roe framework.

“Viability, it seems to me, doesn’t have anything to do with choice. But, if it really is an issue about choice, why is 15 weeks not enough time?” Roberts asked during the arguments. “The thing that is at issue before us today is 15 weeks.”

Nods to conservative colleagues

While Alito’s draft opinion doesn’t cater much to Roberts’ views, portions of it seem intended to address the specific interests of other justices. One passage argues that social attitudes toward out-of-wedlock pregnancies “have changed drastically” since the 1970s and that increased demand for adoption makes abortion less necessary.

Those points dovetail with issues that Barrett — a Trump appointee and the court’s newest member — raised at the December arguments. She suggested laws allowing people to surrender newborn babies on a no-questions-asked basis mean carrying a pregnancy to term doesn’t oblige one to engage in child rearing.

“Why don’t the safe haven laws take care of that problem?” asked Barrett, who adopted two of her seven children.

Much of Alito’s draft is devoted to arguing that widespread criminalization of abortion during the 19th and early 20th century belies the notion that a right to abortion is implied in the Constitution.

The conservative justice attached to his draft a 31-page appendix listing laws passed to criminalize abortion during that period. Alito claims “an unbroken tradition of prohibiting abortion on pain of criminal punishment…from the earliest days of the common law until 1973.”

“Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. Zero. None. No state constitutional provision had recognized such a right,” Alito adds.

Alito’s draft argues that rights protected by the Constitution but not explicitly mentioned in it — so-called unenumerated rights — must be strongly rooted in U.S. history and tradition. That form of analysis seems at odds with several of the court’s recent decisions, including many of its rulings backing gay rights.

18 Replies to “Supreme Court has Voted to Overturn Abortion Rights, Draft Opinion Shows”

  1. Linda Rosa

    There is something about the pro-life or anti-life topic that has always perplexed me. Yes, sometimes a woman is forced to have sex against her will and a pregnancy can occur. I am not talking about that.

    I am talking about intelligent women who don’t insist on a man using birth control before sex. It isn’t rocket science ladies and gentlemen. Sex without a condom can equal pregnancy.

    Abortion should never be used as a form of birth control. Aren’t we smarter than that?

  2. Harriet

    Gustavo Frein, I’m telling people here how it is. Our souls have made choices and there isn’t much we can do about it. It’s for our and our soul’s and for Creator’s learning. I’m not saying it’s great and holy, actually because we’re ignorant of our souls, it really sucks. I’ve seen horrible sorrow because of dead babies.
    But you Gustavo do not sound like love and light when you attack me.

    I didn’t make this sh*t up. I’m just passing on what I know. Making it easier for people, especially women to understand all the complexities involved with our souls and reproduction. Someday you will find out what I’m saying is real.

    When you are full of love and light and of higher vibration you will find that you will allow, accept and tolerate other views, opinions, ideas, and facts. You won’t even feel the need to attack others like me who have different information. You will be more enjoyable to debate with when you reach that higher vibration. And I think you will be happier too, not so critical, angry and hateful sounding.

    Women, please make the decision that you feel is best and right for you. If you decide to make the decision that goes against your soul’s wishes, I guarantee your soul will let you know.

    Love and Light to you all.

  3. Lightworker 7

    Have you ever considered this?

    Three successive waves of lightworkers began incarnating on this planet after the first atomic bomb was dropped to raise the vibration of the planet leading to the next dimension/density/New Earth.

    Because of the Law of Free Will, outside help is not allowed to interfere and do things from outside the planet, but anyone incarnating inside this system is. There were lots of bodies to incarnate into to come here and raise the vibration of the planet.

    Then, to limit/stop the second and third wave of lightworkers coming in, the negative polarity/service-to-self group, not wanting Earth to rise but to keep people enslaved, worked to put a big damper on those incoming high vibration entities by severely limiting–via abortion–the available bodies to incarnate into.

    The timing is not coincidental. We are not living in normal times where actions are part of a life lesson to be learned. This was deliberate targeting of people who volunteered to come to Earth to prevent them from coming and making a difference for the better.

    What would the Earth be like if these millions upon millions of people could have been born and be here adding to the vibration of the planet? Would we be much further along in the consciousness of the New Earth instead of the slogging we have to go through now?

  4. david k gates

    None of this is going to matter or even be applicable soon =)

    dont feed it by giving it your energy

  5. rht smythe

    So….one way we kill humans is BAD yet there are several other ways we kill humans every day that is fine and acceptable?

    Who is holding the “fathers” accountable?

    MANY MANY MANY people should NEVER BE ALLOWED TO RAISE CHILDREN……dysfunctional people cannot raise a healthy child and will most likely result in passing along those negative traits to their children, keeping the Cycle of stupidity running smoothly

  6. affh tuiur

    We conveniently forget about these morals when we go to WAR

    Our own government openly assassinates others and it’s Front Page news often!!
    Osama bin Laden was assassinated.
    The Iraqi general Trump said HAD to die was assassinated.

    All we KNOW is what the media tells us …….

  7. Harriet

    If you read my 3 other comments here you will see why abortion shouldn’t even be an issue.

    1. Gustavo Frein

      Yes, when an innocent defenseless baby is murdered by an irresponsible and inhuman woman, it is okay because the soul of the baby only wanted to live long enough to be ripped apart in its mothers womb, or possibly to be delivered by C-section and dissected alive for viable fetal tissue. Then all murder is just fine then Harriet, because the murdered person’s soul wanted to experience that, so let’s just take murder off the books as a crime.

      This is some monstrous rationalization on your part, a combination of your radical woke feminism and your make believe spirituality and bogus love and light.

      What an absolutely pathetic and idiotic way to excuse your homicidal, woke, feminist agenda.

      It’s every woman’s right to destroy life if it is inconvenient for her, so say you.

  8. Harriet

    Another thought. Termination of pregnancy is not a left, right, Democrat or Republican determination or decision. It’s a woman’s personal right to make the decision herself. Its her body. This decision is made all over the world regardless of culture, religion, politics, family rules, husband’s, or any other considerations the woman does not need to consider in making her reproductive decisions. She will make the right decision for herself and the fetus based on her soul and the fetus soul’s guiding. That’s how it works.

    Since the 70’s, the US has declined in every industry, families falling apart, tremendous high-pay job loss, rich getting richer, poor getting poorer, low wages, high credit, the hungry and homeless, failing education, everybody getting sick, dangerous big pharma, wars, everything polluted, etc. The ‘biggy’ the politicians need to keep secret is the Deep State. So to keep the US population distracted the Republicans jumped on the right to live/abortion wagon so we would bicker about that. Big industry tells MSM what to broadcast, and it has to be topics that distract us from the real problems in America. MSM then shows any dissention on any topic that interests a 25 yr old, and the 25 yr old is going to watch news on reproductive rights. So the news is Trump, abortion, Russia/Ukraine war, covid, wildfires, etc. All of this news is a distraction so we won’t think about the real problems like why are the feds deliberately causing another recession/depression by raising interest rates? Or why aren’t the feds talking about creating jobs, fixing pollution, homes for the homeless, dangerous Big Pharma, raising the minimum wage, etc? The feds (meaning our federal government) doesn’t want to fix anything. They want to keep their pockets open to bribes from big pharma, industry heads, lobbies, Deep State, and distract us into fighting about abortion and Trump and covid. MSM is glad there’s a war, more news to distract us from the really important issues in the US they stopped fixing decades ago.

    I’ll be so glad when the lies and deceptions stop.
    Thank you for the article.

    1. Gustavo Frein

      Well, thanks for the Feminist lecture on abortion. You sound like such a strong independent woman. When does your right as a strong independent woman to take the life of your child end? Post birth abortion? 2 weeks after birth? 2 years? When? Maybe your mother would like to abort you now?

      As this engineered cataclysm unfolds so many of these strong independent woman who have made a religion of murdering infants are going to find they are neither strong or independent.

      After reading this evil dressing itself up as love and light I’m cheering for the Archons and their great culling.

  9. Harriet

    There are many safe ways to perform or induce home abortions. I know personally stories from my elders of safe home abortions.

    That women will terminate a pregnancy despite what society wants or judges decide shows what I have believed all along. Women have a right to decide what to do with their bodies. It’s their business, no one elses. That people feel that they can tell women what to do with their bodies, or force women to some law is a violation of personal rights. It’s no different then telling a person what they can eat because you can’t.
    If you want to birth a child that’s your business. If another woman does not want to, no matter any of her circumstances, that’s her business, regardless of viability.

    A soul who wants to incarnate as a human for a very short period of time will choose a mother whose destined to have an abortion or miscarry. Yes, there are souls who want to experience life on Earth in that manner and not live outside the uterus. Also, there are souls who want to live as babies for short periods of time, or as young children for only a couple or a few years. Any life experience you can imagine is desired by souls for the soul’s experience, and there are billions of different experiences desired.

    When you think about it, who do we think we are, what right do we have to make a fetus grow to full term and be born when that is not what the fetus planned or wanted?!?!

    1. flazak

      Yes there must be choice but ideally you do not want to have to make that choice because it is a very sad circumstance, it is traumatic. Certainly accidents can happen and a male can force themselves upon the female and so on but you need to make sure the seed does not enter if you are not ready for it or do not want it rather than terminate the foetus after the deed is done. All circumstances are different yes but ultimately the sexual act needs to happen first. Make sure you are prepared for it and the consequences of it. This is a symptom of a societal ill. I am no expert I am just stating my current opinion on a divisive subject.

      1. flazak

        This is part of a concept I know of as pre-incarnative choices where prior to birthing on Earth you program certain events in your life to create lessons you wish to learn in order to smooth your distortions or biases as part of balancing yourself. It is a difficult concept but consider an mmorpg like Warcraft, you create a character and select attributes etc. It is something we forget when we are born. I don’t think we can use it to justify an abortion but I don’t know honestly.

    2. Harriet

      Yes, you have free will, but your soul wants certain experiences. We don’t change the destiny of “major” events. Major events are going to happen as was planned by your soul and are destined. And your Angels and guides will help you along to meet these destined major events. It is planned by your soul with guidance from angels when you will be born, your parents, major lessons learned, important people in your life, career or lack of, children you will have and whom, husband, lifestyle, when to die and type of death, etc. It’s also up to your soul to decide if you will miscarry, have an abortion, have children or no children, and if they are healthy.

      A soul decided it wants a very short life in a uterus. Because this soul knows Karen is going to have an abortion, it is arranged that this soul will enter Karen at time of conception and live this very short life in a uterus. During this short life the soul can go in and out of the fetus and even occupy Karen’s body and mind for the experience. It learns and experiences what it wants and needs knowing it will not have to be born as a full term baby. That is the experience this soul has chosen and it trusts in God, the angels and guides and Karen’s soul to implement the plan of the abortion.
      It and miscarriages happened millions if not billions of times because not all souls want to live outside the uterus. And many souls want to learn the lessons of losing a baby during miscarriage, abortion, in utero death of baby, and death of baby at childbirth.

      Morbid, yes. But that’s how it works. When your soul decides a major event in your life, you are going to go along with it. That’s why we make stupid decisions even though we know we are making a mistake. But to our soul it’s just life going along as planned.

      So don’t feel like a failure for having miscarried. Think of them as opportunities to help souls to live a short life in a uterus. Same with abortion. You didn’t kill anyone. You didn’t commit a sin. You gave a short life to a soul to experience it the way it wanted to experience it. It’s God’s way, or it wouldn’t even be possible to happen. Everything is God’s way. Everything goes as planned to what our souls need.

      I’m not saying everybody get pregnant and get an abortion! I’m not promoting killing. I’m explaining what your soul and the baby’s soul wanted and how destiny works. It’s rough for us as all, until we understand it and embrace it.

  10. flazak

    FYI I am pro choice yet this abortion issue obviously sucks. I think the answers are to ensure the foetus life is ended painlessly, ensure it is cremated and/or properly buried and work within society to reduce or minimise the circumstances that lead to this choice being made whilst understanding that it will still happen but in a more compassionate way and less often with the traceability and supervision that tries to ensure the proper procedures are followed. As usual this is easier said than done.

    Obviously an ideal scenario is that abortion doesn’t exist but we should be realistic, it can’t happen in a day without intervention from a highly advanced good society that has gizmos which make that choice or procedure completely unnecessary, using med beds etc whilst the society is healed. You can force a ban but we all know it will simply force this procedure underground.

    Of course in conspiracy land there are entities on Earth right now who consume and/or experiment on the tissues and blood of the foetuses and desire more of them for this purpose which is horrific and must be stopped which of course is easier said than done. In any case this industry will absolutely stop at the end of this cycle (imho) when the material world is destroyed by natural cyclical causes and all in it are harvested in the natural harvesting process which is inherently good and true and compassionate to all which manifests in solar nova, pole shift, solar ‘red giant’ etc, all of which are clearly cyclical and creator derived.

  11. AA-G

    Just in time to distract you from the Democrats losing all the midterm elections. Wakey wakey eggs and bakey.