Jurisprudence

Alito’s Leaked Draft Fully Overruling Roe Is Jaw-Dropping and Unprecedented

The justice’s scathing condemnation of abortion pretends not to imperil other rights. Don’t believe it.

Sam Alito testifying
Justice Sam Alito. Chip Somodevilla/Getty Images

The Supreme Court has voted to overturn Roe v. Wade, Politico reported on Monday, revealing an apparent leaked draft of Justice Sam Alito’s majority opinion abolishing the constitutional right to abortion.

Alito’s draft, which he appears to have completed in February, constitutes an acidic and unflinching repudiation of reproductive rights—as well as other closely connected liberties like LGBTQ equality. It is a maximalist assault on progressive constitutionalism that will lead to the near-instant prohibition of abortion in as many as 26 states.

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Never before has the complete draft of a Supreme Court opinion leaked before its official release. But there are many good reasons to believe that the unprecedented leak in Dobbs v. Jackson Women’s Health Organization is, in fact, real.

Most obviously, it reads like a genuine opinion, with the proper structure and format as well as meticulous and extensive citations. It is written in Alito’s voice, with a caustic tone that tracks his previous criticisms of Roe and an evident disgust with abortion itself. A stamp on the front page states that it was circulated to the other justices on Feb. 10, which would mean that Alito and his clerks took two months to write it. That timing checks out. There’s a long appendix with various statutes at the end, which Alito frequently attaches to his opinions. From top to bottom, this document looks authentic.

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It is also remarkably extreme. Alito’s Dobbs opinion does not seek out any middle path. He disparages Roe and its successors as dishonest, illegitimate, and destructive to the court, the country, and the Constitution. He quotes a wide range of anti-abortion activists, scholars, and judges who view abortion as immoral and barbaric; there’s even a footnote that approvingly cites Justice Clarence Thomas’ debunked theory that abortion is a tool of eugenics against Black Americans.

And he disavows the entire line of jurisprudence upon which Roe rests: the existence of “unenumerated rights” that safeguard individual autonomy from state invasion. Alito asserts that any such right must be “deeply rooted” in the nation’s history and tradition, and access to abortion has no such roots.

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The obvious problem with this analysis is that the Supreme Court has identified plenty of “unenumerated rights” that lack deep roots in American history. Most recently, the court established the right of same-sex couples to be intimate (2003’s Lawrence v. Texas) and get married (2015’s Obergefell v. Hodges). Alito dismissed both decisions in harsh terms, mocking their “appeals to a broader right to autonomy” as a slippery slope. The “high level of generality” in their reasoning, he wrote, could “license fundamental rights to illicit drug use, prostitution, and the like.” It is difficult to square this opprobrium toward Lawrence and Obergefell with Alito’s later assurance that his decision “should not be understood to cast doubt on precedents that do not concern abortion.” This unreasoned disclaimer is not worth much on the heels of 62 pages shredding dozens of precedents over a half-century.

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Other aspects of the Dobbs opinion read like pure, unadulterated Alito-ism. (There are, for instance, citations to famed criticism of Roe from liberals like Justice Ruth Bader Ginsburg and Laurence Tribe that gratuitously troll progressives.) Indeed, many aspects of the prose suggest that no other justice in the majority had yet weighed in when Alito circulated the draft. Politico reports that Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett voted with Alito to overrule Roe. That gives Alito just five votes, none of which he can afford to lose.

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[Read: Why Alito Can’t Find the Right to Abortion in the Constitution]

During oral arguments, Kavanaugh and Barrett sounded eager to limit backlash, something the leaked opinion shows no interest in doing. Kavanaugh wanted to cabin the court’s reasoning by framing abortion as “unique” because it ostensibly involves the taking of a life. Alito’s draft does say that abortion is “unique,” but this idea does not lie at the heart of his analysis. Rather, his more emphatic denunciation of Roe’s logic is that abortion rights are not firmly entrenched in tradition or a part of the Constitution’s original meaning. If it’s true that these rights receive no protection, then same-sex marriage will not stand for long. Yet instead of toning down his rhetoric, Alito simply cited Kavanaugh’s past opinions over and over again—as if flattery will be sufficient to appease his politically minded fifth vote.

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It thus seems possible that Kavanaugh, and maybe Barrett, will urge Alito to soften some portions of the opinion that call other precedents into doubt or depict pro-choice justices as idiots and partisan hacks. Will it work? This leak may make that task more difficult, as Alito will not want the public to think that he caved to more moderate squishes. And where is Chief Justice John Roberts in all this? Politico suggests that he did not vote with the majority to overrule Roe. And CNN reported on Monday night that the chief justice wanted to uphold the law at issue in Dobbs, Mississippi’s 15-week abortion ban, and commence a more incremental rollback of abortion rights. He may now try to dangle some compromise with Alito as the cost of his vote—if not a substantive settlement, then a less scathing tone.

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Aside from the Roberts mystery, there’s another question: Who in the world leaked this draft? There are two likely scenarios. First, a liberal justice or clerk may have leaked it to ring the alarm and trigger so much backlash that Kavanaugh or Barrett could step back from the brink. Second, a conservative justice or clerk could have leaked it in an effort to lock in the majority’s votes. If Kavanaugh is wavering, this leak might persuade him to stick to his guns to avoid a public flip-flop while conveying principled certainty.

No matter how this draft reached the public, its release is one of the biggest Supreme Court stories ever. It will alter the justices’ continued deliberations over the next two months, deepening resentments and recriminations between the warring camps. There is still time for a justice to flip—an opinion is not final until it is announced—but the court generally completes its business by the end of June. So the clock is ticking. And right now, a majority appears to be careening toward the complete and unapologetic eradication of Roe.

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