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Explaining Alito's Leaked Draft Opinion Overturning Roe v. Wade

By Joseph Fawbush, Esq. on May 03, 2022 3:50 PM

The unprecedented leak of U.S. Supreme Court Justice Samuel Alito's first draft in the monumental abortion case Dobbs v. Jackson Women's Health would explicitly overturn Roe v. Wade and end the constitutional right to an abortion.

Here is a quick summary of that opinion, which can (and likely will) change from its current version. However, the first draft does strongly suggest that the court is likely to overturn Roe in about a month.

Is Justice Alito's Opinion in Dobbs a Certainty?

In a word, no. Justices can, and do, change both the language of opinions and even their holding after deliberation. Nothing has been decided yet in the case and won't be until days before the court releases the official opinion, which will likely come by the end of June.

However, the first draft purports to be the majority opinion and suggests that at least four other justices have expressed a willingness to sign on to Alito's first draft. Politico, which obtained the document, reported that Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett form the remaining majority. In cases as significant and controversial as Dobbs, justices will often write their own concurring or dissenting opinions.

As of now, we only know Alito's opinion on the case, and even that could change. But Alito's central holding — that Roe v. Wade was "egregiously wrong" — is unlikely to change significantly.

Justice Alito's Constitutional Arguments in Dobbs

Alito starts his opinion in Dobbs by heavily criticizing Roe v. Wade and its successor Planned Parenthood v. Casey. According to Alito, the court's holding in Roe has unclear roots in the Constitution. The court must overturn Roe, Alito argues, because "[t]he Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision . . . including the Due Process Clause of the Fourteenth Amendment."

According to Alito's reasoning, Roe was "remarkably loose in its treatment of the constitutional text." Alito notes that Roe rests not on any single constitutional provision, but on five: the First, Fourth, Fifth, Ninth, and 14th Amendments.

However, because the majorities in Roe and Casey relied largely on the 14th Amendment, Alito spends a lot of time criticizing their interpretations of the unenumerated rights granted by "substantive due process," which the Supreme Court has occasionally found in the 14th Amendment in cases dating back to at least the mid-20th century.

A Historical Look at Abortion Rights

The majority in Roe held that any constitutional right to privacy "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." In Dobbs, Alito disagrees, writing that "any such [substantive due process] right must be deeply rooted in this Nation's history and tradition . . . [t]he right to an abortion does not fall within this category."

Alito argues that a historical analysis is essential because a right to "liberty" (which Casey held as the basis for the right to abortion) is not clear enough to grant anything specific. "In interpreting what is meant by the 14th Amendment's reference to liberty," he writes, "we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy."

Instead, consistent with his judicial philosophy as an originalist and to combat what he sees as an inadequate historical analysis in Roe and Casey, Alito looks extensively to the circumstances surrounding the passing of the 14th Amendment. He notes that in 1868, most states criminalized abortion at all stages of pregnancy except to save the life of the mother. Note that it is not clear, at least at this time, from Alito's opinion whether a state could now pass a law that criminalizes abortion even if performed to save a pregnant woman's life.

Alito's historical analysis points toward most states criminalizing abortion throughout the 19th century and earlier. As such, access to abortion cannot be "deeply rooted" in the nation's history and is not a protected right.

Distinguishing Abortion From Other Unenumerated Rights in the 14th Amendment

The Supreme Court has held that the 14th Amendment grants more unenumerated rights than just the right to an abortion. Alito attempts to distinguish these rights from abortion, holding that Roe and Casey are fundamentally different in that "[a]bortion destroys . . . potential life" and "none of the other decisions cited by Roe and Casey "involve the critical moral question posed by abortion." These rights include:

In distinguishing these unenumerated rights from Roe and Casey, Alito implies these rights could remain untouched by the forthcoming majority opinion in Dobbs. However, Alito's draft version of Dobbs inarguably opens the door to further challenges of the rights granted by the 14th Amendment. From this first draft it appears Justice Alito may not be as receptive to these challenges as he is with abortion, but forecasting any potential future cases is completely speculative at this point.

Casey and Stare Decisis

Finally, Alito addresses stare decisis, the legal doctrine that holds that the Supreme Court should not overturn past decisions, barring exceptional circumstances. Alito argues that Planned Parenthood v. Casey, which upheld Roe, was "based solely on the doctrine of stare decisis." According to Alito, stare decisis is at its weakest when interpreting the Constitution, since the Constitution is "notoriously hard to amend" and it is important that constitutional questions "be settled right." Alito argues that some of the court's most-respected opinions, such as Brown v. Board of Education, overturned previous precedents, and lists several examples in a footnote.

Instead of respecting Roe and Casey, Alito argues this decision in Dobbs corrects an erroneous and ill-considered ruling from the court, writing that in addition to being a weak argument, Casey's holding remains largely unworkable and has "diluted the strict standard for facial constitutional challenges" in other cases.

Next Steps and Where Abortion Could Be Illegal In a Month

With Roe v. Wade likely to be overturned soon, the question of the legality of abortion will be left with the states. Many states have "trigger laws" on the books that will outlaw abortion as soon as it is constitutional to do so. FindLaw has a map showing where abortion will be outlawed once the court issues its final opinion in June.

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