In a story first reported by Politico, the news outlet has obtained what is reportedly a first draft of a majority opinion, authored by Supreme Court Justice Samuel Alito in an abortion case argued last December, that overturns Roe v. Wade while upholding Mississippi’s 15-week abortion ban.
The 98-page draft in Dobbs v. Jackson Women’s Health Organization was dated February 10 and was apparently intended to be circulated to the other justices for review and comment.
While the potential news of Roe’s demise is a blockbuster, the Politico story must be read with a certain caution.
The purported Alito opinion, if authentic, is by its own terms merely a first draft. It’s worth noting that in the run-up to delivering a final opinion, justices can switch sides, modify their opinions, and majorities can change in any case. In other words, the draft opinion doesn’t mean with certainty that Roe is dead.
With that said, the Alito draft leaves nothing on the table in its condemnation of the 1973 Roe decision by Justice Harry Blackmun and its progeny, including 1992’s decision in Planned Parenthood v. Casey.
“Roe was egregiously wrong from the start,” the draft reads. “Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
Alito notes that the court has issued important decisions that overturned previous bad ones, including 1954’s Brown v. Board of Education, which overruled its 1896 “separate but equal” decision in Plessy v. Ferguson. He includes a long footnote with a list of dozens of such cases.
“Without these decisions, American constitutional law as we know it would be unrecognizable, and this would be a different country,” he wrote.
While pro-life leaders are cautiously optimistic at hearing the Politico story, no one is popping any champagne corks just yet, including Mississippi’s Attorney General Lynn Fitch, who led the state’s defense of its 15-week abortion ban.
“We will let the Supreme Court speak for itself and wait for the Court’s official opinion,” Fitch told the Clarion Ledger.
Abortion supporters have already started protesting outside the Supreme Court building in Washington, D.C., and crowds are expected to grow over the days and weeks ahead.
Noted Supreme Court observer and former Scalia clerk, Ed Whelan, suggests several options for the Supreme Court to take in order to cut short the speculation, protests and other uncertainty caused by the Politico story, including issuing a final decision as soon as possible, rather than waiting until the end of June, which is typical of many of the court’s blockbuster decisions.
As always, we should prayerfully leave the matter in the Lord’s hands. “Do not be anxious about anything, but in everything by prayer and supplication with thanksgiving let your requests be made known to God.” (Philippians 4:6 ESV).
Update: Chief Justice John Roberts has confirmed the authenticity of the Alito draft while warning that it is not the final opinion of the court. He also announced an investigation to learn the identity of the leaker.
Photo from Politico.