A leaked draft of the Supreme Court’s majority opinion on a Mississippi abortion ban revealed that a majority of the conservative justices has voted to strike down Roe v. Wade.
The draft, first reported by Politico, was reportedly written by Justice Samuel Alito, who in the opinion railed against Roe and the nationwide abortion protections it has afforded Americans since 1973. If some version of the document he wrote ends up being the final opinion, Roe will be knocked down in its entirety. He was reportedly joined in the conference vote soon after oral arguments by Justices Amy Coney Barrett, Brett Kavanaugh, Neil Gorsuch and Clarence Thomas in December.
It’s possible the other conservative justice may push for a less extreme blow to the landmark ruling — CNN reported last night that Chief Justice John Roberts remains reluctant to overturn entirely — but there’s no guarantee that Alito’s screed won’t be the final word.
Here are the key takeaways from the draft:
Alito has some thoughts about ‘abortionists.’
Alito leaves little question of his hostility toward doctors who provide abortions: He refers to them as “abortionists” three times in the draft.
The word, like many in the abortion debate, is freighted with sinister implications and often hijacked by the anti-abortion movement.
As one peeved abortion provider wrote to the New York Times in 1993, taking issue with their usage of the word in a headline: “The term abortionist has been used most often to describe illegal actors in a sleazy world of avaricious, incompetent criminals exploiting immoral women in a sordid and hazardous procedure.”
To talk about the abortion debate is to talk about the struggle over language. The anti-abortion movement has notched many wins on that front: calling themselves a “pro-life” mission that seeks to save “unborn children” from “mutilation” and “murder.” Even a term as granular as a “fetal heartbeat” bill is disputed: the emotionally evocative title is not medically accurate, as the embryo — not yet a fetus — does not have a developed heart by the time bans like Texas’ go into effect.
Alito goes all the way to tying abortion to eugenics.
In one footnote, Alito attempts to tie legal abortion access to the racist eugenics movement through a reference to amicus briefs that present the “motives of proponents of liberal access to abortion.”
“They note that some such supporters have been motivated by a desire to suppress the size of the African-American population,” the justice writes.
It’s a wink at a claim made by Thomas in a different abortion case out of Indiana in 2019 called Box v. Planned Parenthood. Thomas wrote a 20-page concurring opinion, somewhat separate from the specific facts of the case at hand, where he argued that “abortion is an act rife with the potential for eugenic manipulation.”
Scholars, including the one who wrote the book Thomas heavily cited, have debunked Thomas’ claim for a number of reasons, not least on the issue of autonomy. The eugenics movement depended on blocking a woman’s bodily autonomy and giving the government the power to decide who was worthy of reproducing. Abortion rights reverse that idea, giving women the power to terminate pregnancies they don’t want.
Many have also pointed out that Thomas’ claims are simply historically inaccurate. Most eugenists were against abortion, worried that only wealthy women — considered members of a supposedly desirable gene pool — would use it.
Thomas in the same 2019 opinion cites birth control as another tool to effectuate eugenics, a reminder that many anti-abortion activists have long eyed the right to contraception as abortion’s only slightly less reprehensible cousin.
Experts have pointed to the Thomas concurrence as potential evidence of his openness to the “fetal personhood” argument, which anti-abortion activists use to push for outlawing abortion nationwide. He cites a belief that abortion was used as “race genocide.”
There’s another sticky dimension to Alito parroting Thomas’ claims here: Some white supremacists have joined with the anti-abortion movement in their fears that allowing white women to have abortions would lower the white population.
Alito cites the good old days of male-controlled governance.
In the draft opinion, Alito puts a heavy emphasis on abortion rights not being “deeply rooted in this Nation’s history and tradition,” and he tries to back up that argument by pointing to states’ pre-Roe laws that criminalized abortion.
“In this country during the 19th century, the vast majority of the States enacted statutes criminalizing abortion at all stages of pregnancy,” he writes.
Abortion isn’t a constitutional right because “until the latter part of the 20th century, such a right was entirely unknown in American law,” the justice argues, and “the inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions.”
“On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of common law until 1973,” Alito writes.
That civil rights can only be upheld based on what 19th century lawmakers’ understanding of what civil rights were is truly an eye-popping argument to make: These were the lawmakers (all of them white men) who also criminalized many rights for women and especially Black people, while legalizing slavery and Jim Crow.
What Alito is essentially arguing is that women (and trans men/nonbinary people who can give birth) shouldn’t be guaranteed access to abortion because the male-dominated government of the past didn’t guarantee them that right.
Alito hints at the risk this Court poses to other privacy rights.
Another point in the draft that’s been raising alarm bells: Alito extended his argument about abortion rights not being entrenched in history to other key civil rights.
Some of the landmark cases he cites include Griswold v. Connecticut (which granted access to contraceptives), Turner v. Safley (which granted the right to marry as a prison inmate) and Loving v. Virginia (which legalized interracial marriage).
“These attempts to justify abortion through appeals to a broader right to autonomy and to define one’s ‘concept of existence’ proves too much,’” he writes. “Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the link. None of these rights has any claim to being deeply rooted in history.”
Alito makes a point to distinguish those cases from Roe on the basis that none of those cases “involved the critical moral question posed by abortion.” He pauses many times in the opinion to repeatedly assert that the nullification of abortion rights is not a defacto primer to the inevitable death of other privacy rights.
“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,” he writes. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
But experts are skeptical. Many rights, like access to contraception and same-sex marriage, exist in the same universe of privacy and personal autonomy.
It’s also common practice for anti-abortion crusaders to assure their audience that abortion is different, singularly objectionable, and that it’s prohibition does not endanger other settled rights. But much like within the abortion debate itself, that overton window tends to shift with the political tides.
Already, the insistence that knocking down Roe is just a return to states’ rights has mutated into something else within anti-abortion circles: the conviction that abortion be outlawed nationwide.
Alito places Roe amid the pantheon of famously wrong-decided precedents.
As has become habit for the conservative justices, Alito attempts to lift Roe to the pantheon of famously wrongly decided Supreme Court cases.
“Stare decisis, the doctrine on which Casey’s controlling opinion was based, does not compel unending adherence to Roe’s abuse of judicial authority,” he writes, adding later: “Some of our most important constitutional decisions have overruled prior precedents.”
He then goes on to cite three cases that expanded people’s rights, rather than curtailing them: Brown v. Board of Education, in which the Court overturned the “separate-but-equal doctrine”; West Coast Hotel Co. v Parrish, where the Court upheld the constitutionality of a state minimum wage and ended the Lochner era of habitually invalidating legislation that regulated business; and West Virginia Board of Education v. Barnette, in which it found that it is unconstitutional to force public school students to salute the American flag.
Alito can’t help but take a victory lap as he relegates abortion rights to the scrap heap with state-sanctioned segregation and labor abuses.
“Roe was egregiously wrong from the start,” he crows. “Its reasoning was exceptionally weak, and the decision has had damaging consequences.”
Correction: An earlier version of this article misidentified the rights established by Turner v. Safley and misidentified some of the cases Alito cited. TPM regrets this error.
