What the Supreme Court’s Draft Really Means

On Monday night, an unprecedented leak from the Supreme Court shifted the foundation of our legal system. In a draft opinion authored by Associate Justice Samuel Alito, and leaked to Politico, the Supreme Court of the United States voted to overturn Roe v. Wade. Without mincing words, Alito wrote that “Roe and Casey must be overruled,” referring to the landmark 1973 decision of Roe v. Wade as “unfocused analysis,” “exceptionally weak,” and “egregiously wrong from the start.” Alito’s damning words, if finalized, will end nearly 50 years of reproductive protections for women.

If this opinion—Dobbs v. Jackson Women’s Health Organization—or something similar to it stands, it will upend half a century of settled law and usher in a new era in legal history, one in which decisions on settled law may reverse civil liberties long assumed protected. Much has been discussed about “the leak.” Who did it? Why? But the leak is not the jaw-dropping story here. The opinion is.

How did this case get to the Supreme Court? In 2018, Mississippi passed a new law, the Gestational Age Act, which makes most abortions illegal after 15 weeks. In 2021, the Supreme Court agreed to hear a challenge to this bill with Dobbs v. Jackson Women’s Health Organization, in effect, taking on the opportunity to reassess Roe. The court heard oral arguments on November 1, and this opinion wasn’t expected to be announced until the end of the court’s term in June or July of this year.

washington, dc   may 04 abortion rights advocates demonstrate in front of the us supreme court building on may 4, 2022 in washington, dc  demonstrations across the country continue as abortion rights and anti abortion advocates react to the leaked initial draft majority opinion indicating the us supreme court would overturn two abortion related cases, which would end federal protection of abortion rights photo by sarah silbigergetty images

Sarah SilbigerGetty Images

In this draft opinion, the court reached its broad hand to circumvent long-established law, revise legal analysis, and remove fundamental rights in a single document. Here, the court found that “the Constitution makes no reference to abortion” as its reasoning to expressly overrule both Roe and Planned Parenthood v. Casey, the 1992 opinion that both revised and solidified Roe’s firm precedent.

Alito further stated that such rights not mentioned in the Constitution—specifically abortion—must be “deeply rooted in this Nation’s history and tradition” to have such protections, and, ultimately, he wrote, “The right to abortion does not fall within this category.” Many rights, though, are not expressly written into the Constitution, a document written in 1787 and ratified in 1788, but are indeed constitutionally protected rights determined over centuries of interpretation and evolution of society. Such rights have included abortion for nearly 50 years, as well as birth control, same-sex marriage, choice of sexual intimacy partners, among many others.

This right to privacy is at the heart of Alito’s decision, as he argued that Roe got it wrong, and moreover, 50 years of history have similarly gotten it wrong. Roe established a three-trimester viability system: In the first trimester of pregnancy, the state cannot regulate a woman’s decision; in the second, the state may impose regulations on abortion “that are reasonably related to maternal health”; and in the third, once the fetus reaches “viability,” abortion can be regulated and prohibited, with the noted exception to save the life or health of the mother.

U.S. common law is based upon the concept of stare decisis, a legal doctrine that requires courts to follow precedent, or prior established case law. In Latin, stare decisis means “to stand by things decided,” and Roe has been precisely this kind of established, binding precedent for nearly 50 years. In rare cases, the court has overruled established precedent when that case created a law that is “unworkable” or “badly reasoned.” The court famously overruled established precedent in Brown v. Board of Education in 1954, when it reversed Plessy v. Ferguson (1896), which established the doctrine of “separate but equal.” Here, Alito shockingly placed Roe in the same category of badly reasoned cases as Plessy, which held that racial segregation was constitutional.

Alito’s decision relied in part on a 13th-century treatise from English jurist Henry de Bracton, and then on a 17th-century legal treatise from noted English jurist Sir Edward Coke, and two additional treatises by Sir Matthew Hale, another 17th-century English barrister and jurist, which “likewise described abortion of a quick child who died in the womb as a ‘great crime’ and a ‘great misprision.’”

What’s more, Alito cited several 18th-century English cases as if they are binding precedent (meaning, stare decisis would require current law to follow them), when these historical references are neither controlling, nor relevant to abortion in 21st-century America. In fact, America didn’t even exist as a country during the writing of many of these documents, and women certainly had few rights. But Alito cited them to “corroborate the treatises’ statements that abortion was a crime.”

Though many have noted that this outcome was not unexpected, Alito himself acknowledged its inevitability when he wrote, “This Court’s inability to end debate on the issue should not have been surprising.” Indeed, it is not surprising, but in a final twist, Alito even stated that “women are not without electoral or political power,” as if trying to rationalize taking away the very power women currently have over their own bodies.

washington, dc   may 04 an abortion rights advocate demonstrates in front of the us supreme court building on may 4, 2022 in washington, dc  demonstrations across the country continue as abortion rights and anti abortion advocates react to the leaked initial draft majority opinion indicating the us supreme court would overturn two abortion related cases, which would end federal protection of abortion rights photo by sarah silbigergetty images

Sarah SilbigerGetty Images

The late Justice Ruth Bader Ginsburg was known to have been critical of Roe, worrying that a decision made with too much change too quickly would leave the new law open to attack. “Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable,” she said in a December 1992 New York University Law Review article called “Speaking in a Judicial Voice.” According to a New York Times article in September 2020, following her death, “The way Justice Ginsburg saw it, Roe v. Wade was focused on the wrong argument—that restricting access to abortion violated a woman’s privacy. What she hoped for instead was a protection of the right to abortion on the basis that restricting it impeded gender equality.” Indeed, Alito’s draft opinion appeared to embody precisely what Ginsburg feared.

So if this draft, or a version of it, becomes law, which it likely will, the concern is that other rights may be next, using the same rationale to effectively end LGBTQ protections as well. Though Alito did try to differentiate abortion from other protections, the reality is that in previous cases where the court overruled established precedent and abandoned stare decisis, it did so to expand or enhance rights—not to restrict or limit them, as it is doing here.

It is essential to note that this is a draft opinion. Revisions are certain, and votes may even shift, though the latter is unlikely. What we are currently reading will not be what is eventually published—at least not completely. My first job out of law school was as a judicial clerk for a judge on the Texas Court of Criminal Appeals, the court of last resort for criminal matters in the state, essentially the criminal wing of the Texas Supreme Court. I drafted early judicial opinions for my judge, who would then review and rewrite them, and then the opinions would be circulated to his fellow judges to read and discuss in their private weekly meetings. Those weekly meetings were sacred spaces in which nobody was allowed to observe; but over months, the opinions changed substantially.

Though I have not worked at the United States Supreme Court, and it is certainly cloaked in more secrecy, tradition, and procedure—and given the high-profile nature of this case, Alito likely penned the early draft himself—I suspect that the process is not terribly dissimilar. This means that we, indeed, must refer to this draft opinion as exactly that—a draft opinion. It has not been handed down, it has not yet been published, which means that Roe v. Wade—at least for now—is still the law of the land. In this draft, Alito wrote, “‘Liberty’ is a capacious term.” How right he is in America today, and how easily it can be taken away.

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