Politico has obtained an initial draft opinion written by Supreme Court Justice Samuel Alito that would strike down Roe v. Wade, the landmark 1973 decision that guarantees a federal constitutional right to abortion.
In the 98-page draft, labeled as the "Opinion of the Court," Alito writes that "Roe was egregiously wrong from the start," adding that it and the 1992 decision Planned Parenthood v. Casey "must be overruled. It is time to heed the Constitution and return the issue of abortion to the people's elected representatives."
Alito professes not to "question the motives" of people who support or oppose laws restricting abortion, and writes that "women are not without electoral or political power. The percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so."
Politico's Josh Gerstein and Alexander Ward said the draft, which was written in February, has been authenticated, and noted that "no draft decision in the history of the court has been disclosed publicly while a case was still pending." This is an "unprecedented revelation" that is "bound to intensify the debate over what was already the most controversial case on the docket this term," they added.
The Supreme Court heard arguments in December for Dobbs v. Jackson Women's Health Organization, which deals with the constitutionality of the 2018 Mississippi state law banning abortions after 15 weeks of pregnancy. A person familiar with the matter told Politico that in internal deliberations on the case, Alito and four other conservative justices — Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — voted to overturn Roe.
The three liberal justices — Stephen Breyer, Sonia Sotomayor, and Elena Kagan — will dissent, Politico's source said, and it's unclear how Chief Justice John Roberts will vote. Even as draft opinions are circulated, justices can change their votes. Recent polling shows that most Americans oppose overturning Roe v. Wade.
A Supreme Court spokesperson declined Politico's request for comment.
In 1992, Justices Sandra Day O'Connor, Anthony Kennedy, and David Souter wrote in the main opinion for Casey that the Supreme Court would pay "a terrible price" for overruling Roe. "While it has engendered disapproval, it has not been unworkable," they wrote. "An entire generation has come of age free to assume Roe's concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions; no erosion of principle going to liberty or personal autonomy has left Roe's central holding a doctrinal remnant."