Initial draft opinion indicates the overturning of Roe v Wade is imminent

scotus abortion

According to an initial draft majority opinion, the Supreme Court has voted to overturn Roe v. Wade decision, the 1973 case that guaranteed right to abortion until the fetus could survive outside the womb.

The 98-page initial draft was obtained by Politico, Justice Samuel Alito wrote that “We hold that Roe and Casey must be overruled. Roe was egregiously wrong from the start.” He also added, “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.”

Court’s holding won’t be final until it is officially published, probably in the next two months. Justices can and do occasionally change their votes and major decisions rely on multiple drafts and vote-trading, sometimes reaching a decision a few days before it is unveiled. 

Till date, no draft decision has been made public, while a case was still on-going. It’s unclear though if there has been any recent changes to the initial draft. The impact of this decision, if unchanged, will end a guarantee of federal constitution protection of abortion rights and will allow each US state to decide whether to ban or restrict abortion. 

A source familiar with the court deliberations said that four other Republican-appointed Justices-  Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett had voted in favor of Alito after hearing oral arguments in December. Three of the Democratic-appointed justices Stephen Breyer, Sonia Sotomayor and Elena Kagan are currently working on one or two disagreements. It is still unclear though how Chief Justice John Roberts will ultimately vote. 

If Alito’s draft is approved, then it would rule in favor of Mississippi over it’s attempt to ban abortions after 15 weeks of pregnancy. 

In his draft Alito argues that the 1973 abortion rights was “ill-conceived” and “deeply flawed” that invented a right which was non-existent in Constitution. Alito writes, “Roe’s survey of history ranged from the constitutionally irrelevant to the plainly incorrect.”, adding, “The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions.”

His draft also meanders into a racial sensitive area, writing that, “Some such supporters have been motivated by a desire to suppress the size of the African American population. It is beyond dispute that Roe has had that demographic effect. A highly disproportionate percentage of aborted fetuses are black.” Alito hasn’t also failed to miss out on quoting various critics of the Roe decision, writing about liberal icons like late Justice Ruth Bader Ginsburg and Harvard Law Professor Laurence Tribe, who at some point discussed the issues with the reasonings of the Roe decisions and its possible impact on the political process. 

Alito also states the impact the decision can have on public discussions. He wrote, “We cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work. We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision.”

Basically, Alito’s drafts argue that the rights that are protected by the Constitution must be rooted in US history and traditions. This seems quite strange, since this form of argument is the opposite of the court’s recent decisions, including its rulings of backing gay rights. And this is why liberal justices are also at odds with Alito’s draft and his assertion that overturning Roe would not put the other rights the court has put out in jeopardy. 

The Supreme Court prides itself on its confidentiality of its internal deliberations, however, this rare form of breach seems to chip away in recent years due to a series of books by law clerks and professors and investigative journalists. Some of these authors held the draft opinions, however, their books were released after the case was solved.