The Supreme Court appears potentially poised to overturn Roe v. Wade, the landmark case enshrining a constitutional right to an abortion, according to a leaked draft opinion obtained and published by Politico on Monday night.
Chief Justice John G. Roberts Jr. on Tuesday confirmed the authenticity of the draft opinion, which is written by Justice Samuel Alito, in Dobbs. v. Jackson Women’s Health Organization. But he emphasized that it “does not represent a decision by the court or the final position of any member on the issues in the case.” He said the court is investigating the extraordinary breach.
That said, Politico reported that five justices — Alito, Clarence Thomas, Neil M. Gorsuch, Brett M. Kavanaugh, and Amy Coney Barrett — have agreed to overturn the half-century-old precedent, and the draft opinion by Alito, one of the court’s two staunchest conservatives, could serve as a road map for how they would eventually do it.
Below are some crucial sections of the draft opinion, with annotations providing analysis and background. Some of the legal jargon and citations are cleaned up for readability.
JUSTICE ALITO delivered the opinion of the Court.
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.
1 One thing you’ll find as you read through the opinion is that, characteristically for Alito, it doesn’t mince words — especially when it comes to how wrong the court was in deciding Roe. This section lays the groundwork for what’s to come, arguing that the court previously failed in sufficiently evaluating the relevant issues, focused on extraneous ones, got things objectively wrong ( “plainly incorrect”) and acted in place of a legislature. Alito isn’t just saying the court was wrong, but that it was sloppy. It will be interesting to see if other justices who support overturning Roe would sign on to such a full-throated critique.
2 This refers to John Hart Ely, a renowned constitutional scholar, in his 1973 Yale Law Review article, “The Wages of Crying Wolf.” It’s also the first of many references to liberal legal voices — references that seem to suggest these views aren’t just the territory of right-wing judicial ideologues. Other repeatedly referenced thinkers include Laurence Tribe and even the late Justice Ruth Bader Ginsburg.
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,” 410 U. S., at 222, and it sparked a national controversy that has embittered our political culture for a half-century.
3 The suggestion here is that even while upholding Roe, the justices who decided Casey, the main case cited as affirming Roe, were more undecided on its actual merits — or even that a majority might not have endorsed Roe’s reasoning. The applicable section of the Casey decision states: “While we appreciate the weight of the arguments made on behalf of the State in the cases before us … the reservations any of us may have in reaffirming the central holding of Roe are outweighed by the explication of individual liberty we have given combined with the force of stare decisis” — the legal principle of adhering to precedents in making decisions. In 1992, a trio of GOP-appointed judges did provide somewhat surprising votes to uphold Roe.
Paradoxically, the judgment in Casey did a fair amount of overruling. 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.
As has become increasingly apparent in the intervening years, Casey did not achieve that goal. Americans continue to hold passionate and widely divergent views on abortion, and state legislatures have acted accordingly. Some have recently enacted laws allowing abortion, with few restrictions, at all stages of pregnancy. Others have tightly restricted abortion beginning well before viability. And in this case, 26 States have expressly asked this Court to overrule Roe and Casey and allow the States to regulate or prohibit pre-viability abortions.
Before us now is one such state law. The State of Mississippi asks us to uphold the constitutionality of a law that generally prohibits an abortion after the fifteenth week of pregnancy — several weeks before the point at which a fetus is now regarded as “viable” outside the womb. In defending this law, the State’s primary argument is that we should reconsider and overrule Roe and Casey and once again allow each State to regulate abortion as its citizens wish. On the other side, respondents and the Solicitor General ask us to reaffirm Roe and Casey, and they contend that the Mississippi law cannot stand if we do so. Allowing Mississippi to prohibit abortions after 15 weeks of pregnancy, they argue, “would be no different than overruling Casey and Roe entirely.” They contend that “no half-measures” are available and that we must either reaffirm or overrule Roe and Casey.
4 This opinion repeatedly cites the fact that the Constitution doesn’t explicitly reference a right to abortion. The counter to that, of course, is that many rights have been bestowed that aren’t explicitly mentioned. Here, Alito cites where the court has drawn the line before: between rights that are “deeply rooted” and implicitly part of the concept of “ordered liberty” — such as other unenumerated rights that Supreme Court has granted — and those that are not. He cites a 1997 Supreme Court case, which states that the court has “regularly observed that the Clause specially protects those fundamental rights and liberties which … objectively” meet those criteria. Later in the opinion, Alito elaborates on what makes a right “deeply rooted.”
5 Critics of Alito’s draft opinion have suggested the logic employed in it — that an unenumerated right such as abortion should be left to legislators — could well be used to roll back other rights, like same-sex marriage and even contraception. Here and elsewhere, Alito suggests those rights are different, and potentially safer, because they don’t involve such a balancing act between “fetal life” and other interests, such as protecting liberty. He adds later, for emphasis: “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.”
6 Alito repeatedly claims that the justices in Roe and Casey weren’t making arguments rooted in principle, but rather, improperly making policy judgments about regulations, which is the domain of elected representatives.
It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. “The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” Casey, 505 U. S., at 979 (Scalia, J., concurring in the judgment in part and dissenting in part). That is what the Constitution and the rule of law demand.
7 This section is a bit dense, but it essentially grapples with an argument once raised by Ginsburg: that abortion could be a protected right under the 14th Amendment’s equal protection clause, rather than other sections of the Constitution. Ginsburg felt this would have insulated Roe better from future attacks. Alito quickly dispatches the idea that an abortion ban might discriminate on the basis of sex and makes a key pronouncement when it comes to how difficult it will be to challenge future abortion bans.
8 In this section, Alito offers a history of English and American law that he says the Roe justices did not produce, arguing that these traditions do not contain a right to abortion. Rather, “an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of common law until 1973.”
Not only was there no support for such a constitutional right until shortly before Roe, but abortion had long been a crime in every single State. At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages. American law followed the common law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions. By the time of the adoption of the Fourteenth Amendment, three-quarters of the States had made abortion a crime at any stage of pregnancy, and the remaining States would soon follow.
In this country during the 19th century, the vast majority of the States enacted statutes criminalizing abortion at all stages of pregnancy. By 1868, when the Fourteenth Amendment was ratified, three-quarters of the States, 28 out of 37, had enacted statutes making abortion a crime even if it was performed before quickening. Of the nine States that had not yet criminalized abortion at all stages, all but one did so by 1910. The trend in the territories that would become the last 13 States was similar: all of them criminalized abortion at all stages of pregnancy between 1850 (the Kingdom of Hawaii) and 1919 (New Mexico). By the end of the 1950s, according to the Roe Court’s own count, statutes in all but four States and the District of Columbia prohibited abortion “however and whenever performed, unless done to save or preserve the life of the mother.”
9 Conservative legal scholars have often said Roe imposed an unpopular right on the entire country. Abortion rights were indeed less popular before Roe, but a Gallup poll in 1969 found that 40 percent supported legislation to allow it in the first three months of a pregnancy.
10 A notable rhetorical flourish from Alito, overlaying abortion with the 1997 Supreme Court ruling on assisted suicide. Public support for assisted suicide had built for decades, but the court still struck it down. In fact, depending on which poll you consult, opposition to overturning Roe today approaches where support for assisted suicide was back then. It might not be a coincidence that he cites that case repeatedly. But the parallels aren’t just between 1973 and 1997; they’re also between 1997 and today.
Instead of seriously pressing the argument that the abortion right itself has deep roots, supporters of Roe and Casey contend that the abortion right is an integral part of a broader entrenched right. Roe termed this a right to privacy, and Casey described it as the freedom to make “intimate and personal choices” that are “central to personal dignity and autonomy.” Casey elaborated: “At the heart of liberty is the right to de fine one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
The Court did not claim that this broadly framed right is absolute, and no such claim would be plausible. While individuals are certainly free to think and to say what they wish about “existence,” “meaning,” the “universe,” and “the mystery of human life,” they are not always free to act in accordance with those thoughts. License to act on the basis of such beliefs may correspond to one of the many understandings of “liberty,” but it is certainly not “ordered liberty.”
11 Alito again gets at the idea that abortion involves more of a balancing act than other unenumerated rights under the 14th Amendment, and suggests legislatures are the venue for deciding that balance. One potential issue when it comes to the implications for issues like same-sex marriage: what to make of arguments — which have fallen out of favor but were big before Obergefell v. Hodges — that there were legitimate competing interests between a right to same-sex marriage and supposed societal harm caused by acceptance of homosexuality.
Nor does the right to obtain an abortion have a sound basis in precedent. Casey relied on cases involving the right to marry a person of a different race, Loving v. Virginia, 388 U.S. 1 (1967); the right to marry while in prison, Turner v. Safley, 482 U. S. 78 (1987); the right to obtain contraceptives, Griswold v. Connecticut, 381 U.S. 479 (1965), Eisenstadt v. Baird, 405 U. S. 438 (1972), Carey v. Population Services International, 431 U.S. 678 (1977); the right to reside with relatives, Moore v. East Cleveland, 431 U.S. 494 (1977); the right to make decisions about the education of one’s children, Pierce v. Society of Sisters, 268 U.S. 510 (1925), Meyer v. Nebraska, 262 U.S. 390 (1923); the right not to be sterilized without consent, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942); and the right in certain circumstances not to undergo involuntary surgery, forced administration of drugs, or other substantially similar procedures, Winston v. Lee, 470 U.S. 753 (1985), Washington v. Harper, 494 U. S. 210 (1990), Rochin v. California, 342 U. S. 165 (1952). Respondents and the Solicitor General also rely on post-Casey decisions like Lawrence v. Texas, 539 U.S. 558 (2003) (right to engage in private, consensual sexual acts), and Obergefell v. Hodges, 576 U.S. 644 (2015) (right to marry a person of the same sex).
These attempts to justify abortion through appeals to a broader right to autonomy and to define one’s “concept of existence” prove too much. Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like. None of these rights has any claim to being deeply rooted in history.
12 Again, a valid question — given the moral dilemmas involved — is where the line is drawn: When does a court case, which seems to establish a right, actually involve a “critical moral question” that ought to be left to legislators? It might be true that abortion is an exceptional or even a unique case, since it deals with issues of life — but where the courts set that line will be key to other unenumerated rights, both existing and prospective.
We next consider whether the doctrine of stare decisis counsels continued acceptance of Roe and Casey. Stare decisis plays an important role in our case law, and we have explained that it serves many valuable ends. It protects the interests of those who have taken action in reliance on a past decision. It “reduces incentives for challenging settled precedents, saving parties and courts the expense of endless relitigation.” It fosters “evenhanded” decision making by requiring that like cases be decided in a like manner. It “contributes to the actual and perceived integrity of the judicial process.” And it restrains judicial hubris and reminds us to respect the judgment of those who grappled with important questions in the past. “Precedent is a way of accumulating and passing down the learning of past generations, a font of established wisdom richer than what can be found in any single judge or panel of judges.” N. Gorsuch, A Republic If You Can Keep It 217 (2019).
We have long recognized, however, 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.” In addition, when one of our constitutional decisions goes astray, the country is usually stuck with the bad decision unless we correct our own mistake. An erroneous constitutional decision can be fixed by amending the Constitution, but our Constitution is notoriously hard to amend. Therefore, in appropriate circumstances we must be willing to reconsider and if necessary overrule constitutional decisions.
Some of our most important constitutional decisions have overruled prior precedents. We mention three. In Brown v. Board of Education, the Court repudiated the “separate but equal” doctrine, which had allowed States to maintain racially segregated schools and other facilities. In so doing, the Court overruled the infamous decision in Plessy v. Ferguson, along with six other Supreme Court precedents that had applied the separate-but-equal rule.
In West Coast Hotel Co. v. Parrish, the Court overruled Adkins v. Children’s Hospital of D.C., which had held that a law setting minimum wages for women violated the “liberty” protected by the Fifth Amendment’s Due Process Clause. West Coast Hotel signaled the demise of an entire line of important precedents that had protected an individual liberty right against state and federal health and welfare legislation.
Finally, in West Virginia Bd. of Ed. v. Barnette, after the lapse of only three years, the Court overruled Minersville School Dist..v. Gobitis and held that public school students could not be compelled to salute the flag in violation of their sincere beliefs. Barnette stands out because nothing had changed during the intervening period other than the Court’s belated recognition that its earlier decision had been seriously wrong.
On many other occasions, this Court has overruled important constitutional decisions. We include a partial list in the footnote that follows. Without these decisions, American constitutional law as we know it would be unrecognizable, and this would be a different country.
No Justice of this Court has ever argued that the Court should never overrule a constitutional decision, but overruling a precedent is a serious matter. It is not a step that should be taken lightly. Our cases have at tempted to provide a framework for deciding when a precedent should be overruled, and they have identified factors that should be considered in making such a decision.
13 Alito sets up his argument for the extraordinary and rare act of overruling a Supreme Court precedent. He and others were asked about this kind of thing in their confirmation hearings — in large part because nominees don’t answer questions on specific issues, and asking about stare decisis was how abortion rights advocates could glean clues about Roe. Some of Donald Trump’s nominees suggested they’d be more hard-pressed to overrule a long-standing and repeatedly reaffirmed precedent like Roe — even as they kept the door ajar.
The nature of the Court’s error. An erroneous interpretation of the Constitution is always important, but some are more damaging than others.
The infamous decision in Plessy v. Ferguson, supra, was one such decision. It betrayed our commitment to “equality under law.” It was “egregiously wrong” on the day it was decided, and as the Solicitor General agreed at oral argument, it should have been overruled at the earliest opportunity.
14 Alito isn’t exactly equating Roe and Plessy, the latter of which is acknowledged as one of the great injustices in American history. But certainly, placing them next to one another like this — and implicitly comparing Dobbs with Brown v. Board of Education — is a choice.
15 These are some of Alito’s harshest comments in the entire decision for both Roe and Casey. The first cites Justice Byron R. White’s dissent in Roe.
The quality of the reasoning. … The weaknesses in Roe’s reasoning are well-known. Without any grounding in the constitutional text, history, or precedent, it imposed on the entire country a detailed set of rules much like those that one might expect to find in a statute or regulation. Dividing pregnancy into three trimesters, the Court imposed special rules for each. During the first trimester, the Court announced, “the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.” After that point, a State’s interest in regulating abortion for the sake of a woman’s health became compelling, and accordingly, a State could “regulate the abortion procedure in ways that are reasonably related to maternal health.” Finally, “in the stage subsequent to viability,” which in 1973 roughly coincided wit h the beginning of the third trimester, the State’s interest in “the potentiality of human life” became compelling, and therefore a State could “regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”
This elaborate scheme was the Court’s own brainchild. Neither party advocated the trimester framework; nor did either party or any amicus argue that “viability” should mark the point at which the scope of the abortion right and a State’s regulatory authority should be substantially transformed.
Not only did this scheme resemble the work of a legislature, but the Court made little effort to explain how these rules could be deduced from any of the sources on which constitutional decisions are usually based. We have already discussed Roe’s treatment of constitutional text, and the opinion failed to show that history, precedent, or any other cited source supported its scheme.
Roe featured a lengthy survey of history, but much of its discussion was irrelevant, and the Court made no effort to explain why it was included. For example, multiple paragraphs were devoted to an account of the views and practices of ancient civilizations where infanticide was widely accepted. When it came to the most important historical fact — how the States regulated abortion when the Fourteenth Amendment was adopted — the Court said almost nothing. It allowed that States had tightened their abortion laws “in the middle and late 19th century,” but it implied that these laws might have been enacted, not to protect fetal life, but to further “a Victorian social concern” about “illicit sexual conduct.”
16 At certain points, Alito walks right up to accusing the justices in the majority on Roe of being deliberately misleading about history — or at least negligent — in their quest for a specific outcome.
After surveying history, the opinion spent many paragraphs conducting the sort of fact-finding that might be undertaken by a legislative committee. This included a lengthy account of the “position of the American Medical Association” and “[t]he position of the American Public Health Association,” as well as the vote by the American Bar Association’s House of Delegates in February 1972 on proposed abortion legislation. Also noted were a British judicial decision handed down in 1939 and a new British abortion law enacted in 1967. The Court did not explain why these sources shed light on the meaning of the Constitution, and not one of them adopted or advocated anything like the scheme that Roe imposed on the country.
Finally, after all this, the Court turned to precedent. Citing a broad array of cases, the Court found support for a constitutional “right of personal privacy,” but it conflated two very different meanings of the term: the right to shield information from disclosure and the right to make and implement important personal decisions without governmental interference. Only the cases involving this second sense of the term could have any possible relevance to the abortion issue, and some of the cases in that category involved personal decisions that were obviously very, very far afield. See Pierce v. Society of Sisters, 268 U.S. 510 (1925) (right to send children to religious school); Meyer v. Nebraska, 262 U.S. 390 (1937) (right to have children receive German language instruction).
What remained was a handful of cases having something to do with marriage, Loving v. Virginia, 388 U.S. 1 (1967) (right to marry a person of a different race), or procreation, Skinner v. Oklahoma, 316 U.S. 535 (1942) (right not to be sterilized); Griswold v. Connecticut, 381 U.S. 479 (1965) (right of married persons to obtain contraceptives); Eisenstadt v. Baird, 405 U.S. 438 (1972) (same, for unmarried persons). But none of these decisions involved what is distinctive about abortion: its effect on what Roe termed “potential life.”
17 See the annotation above; here, Alito criticizes past justices’ use of legal precedent. In the following pages, he says they did not provide “any cogent justification” for distinguishing between pre- and post-viability abortions, but rather drew an arbitrary line that “makes no sense.” (Roe legalized the former but allows states to restrict the latter.)
Having shown that traditional stare decisis factors do not weigh in favor of retaining Roe or Casey, we must address one final argument that featured prominently in the Casey plurality opinion.
The argument was cast in different terms, but stated simply, it was essentially as follows. The American people’s belief in the rule of law would be shaken if they lost respect for this Court as an institution that decides important cases based on principle, not “social and political pressures.” There is a special danger that the public will perceive a decision as having been made for unprincipled reasons when the Court overrules a controversial “watershed” decision, such as Roe. A decision overruling Roe would be perceived as having been made “under fire” and as a “surrender to political pressure,” and therefore the preservation of public approval of the Court weighs heavily in favor of retaining Roe.
18 Another notable inclusion, in that striking down Roe is something that polls poorly — even as Americans overall are pretty evenly split on abortion rights more broadly. A Washington Post-ABC News poll released just Tuesday shows Americans favor upholding Roe by about a two-to-one margin, 54 percent to 28 percent. It’s also notable in that, despite the high-minded ideal that judges make rulings irrespective of popularity, Chief Justice Roberts, who has reportedly not signed on this opinion, has carefully guarded public perceptions of the court’s legitimacy and reportedly tried to push decisions on issues like this in a more moderate direction. Of course, Roberts isn’t really the swing vote anymore, and this opinion would certainly test him on that count
The Casey plurality “call[ed] the contending sides of a national controversy to end their national division,” and claimed the authority to impose a permanent settlement of the issue of a constitutional abortion right simply by saying that the matter was closed. That unprecedented claim exceeded the power vested in us by the Constitution. As Hamilton famously put it, the Constitution gives the judiciary “neither Force nor Will.” Our sole authority is to exercise “judgment” — which is to say, the authority to judge what the law means and how it should apply to the case at hand. The Court has no authority to decree that an erroneous precedent is permanently exempt from evaluation under traditional stare decisis principles. A precedent of this Court is subject to the usual principles of stare decisis under which adherence to precedent is the norm but not an inexorable command. If the rule were otherwise, erroneous decisions like Plessy and Lochner would still be the law. That is not how stare decisis operates.
19 Not only was the court wrong on Roe, Alito says, but it was wrong in its analysis of what its decision would mean for society. For this, he again cites a prominent liberal legal mind: Ginsburg, who lamented in the early 1990s that a more constrained Roe “might have served to reduce rather than to fuel controversy.”
Neither decision has ended debate over the issue of a constitutional right to obtain an abortion. Indeed, in this case, 26 States expressly ask us to overrule Roe and Casey and to return the issue of abortion to the people and their elected representatives. This Court’s inability to end debate on the issue should not have been surprising. This Court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on. Whatever influence the Court may have on public attitudes must stem from the strength of our opinions, not an attempt to exercise “raw judicial power.”
20 Again, Alito nods to the potential unpopularity of this opinion, of which at least some of the justices will be acutely aware.
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.
We must now decide what standard will govern if state abortion regulations undergo constitutional challenge and whether the law before us satisfies the appropriate standard.
Under our precedents, rational-basis review is the appropriate standard for such challenges. As we have explained, procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution’s text or in our Nation’s history.
21 Alito again sets about laying out the particulars by which abortion bans might be challenged. Key here: A law “must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests,” which include the “preservation of prenatal life” but also the “protection of maternal health and safety.”
These legitimate interests justify Mississippi’s Gestational Age Act. Except “in a medical emergency or in the case of a severe fetal abnormality,” the statute prohibits abortion “if the probable gestational age of the unborn hu man being has been determined to be greater than fifteen (15) weeks.” The Mississippi Legislature’s findings recount the stages of “human prenatal development” and assert the State’s interest in “protecting the life of the unborn.” The legislature also found that abortions performed after fifteen weeks typically use the dilation and evacuation procedure, and the legislature found the use of this procedure “for non-therapeutic or elective reasons [to be] a barbaric practice, dangerous for the maternal patient, and demeaning to the medical profession.” These legitimate interests provide a rational basis for the Gestational Age Act, and it follows that respondent’s constitutional challenge must fail.
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.
The judgment of the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.