Deliberations on controversial cases have changed over time. Justices can change their votes as draft opinions circulate and major decisions can be subject to multiple drafts and vote-trading, sometimes until just days before a decision is unveiled. The court's holding will likely be published in the next two months.
The ruling drafted in February would allow each state to decide whether to restrict or ban abortion and end the federal guarantee of abortion rights. It is not clear if there have been changes to the draft.
There has been no public disclosure of a draft decision in the modern history of the court. The debate over what was already the most controversial case on the docket this term will intensify after the revelation.
The draft opinion gives an extraordinary window into the deliberations of the justices in one of the most consequential cases before the court in the last five decades. Some court-watchers predicted that the conservative majority would not overturn a 49-year-old precedent. The draft shows that the court wants to reject the logic and legal protections.
“Roe was egregiously wrong from the start. 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.”
A person familiar with the court's deliberations said that four of the other Republican-appointed justices voted with Alito.
The justices are working on one or more dissents, according to the person. How Chief Justice John Roberts will vote and whether he will join an already written opinion or draft his own is not known.
The document is labeled as a first draft of the majority opinion and has a note that it was sent to the justices. The closely watched case over Mississippi's attempt to ban most abortions after 15 weeks of pregnancy would be in favor of the state if the Alito draft is adopted.
A Supreme Court spokesman wouldn't comment or make another representative of the court available to answer questions about the draft document.
A copy of the draft opinion was given to POLITICO by a person familiar with the court proceedings in the Mississippi case. An appendix of historical state abortion laws is included in the draft opinion. The document has citations to previous court decisions, books and other sources. The appearances and timing of the draft are in line with court practice.
The disclosure of Alito's draft majority opinion came as all sides in the abortion debate were bracing for the ruling. Since the December oral arguments indicated a majority was inclined to support the Mississippi law, there has been a lot of speculation.
Under longstanding court procedures, justices hold preliminary votes on cases shortly after argument and assign a member of the majority to write a draft of the court's opinion. In some cases the justices change their votes altogether and in other cases the draft is amended in consultation with other justices.
When the chief justice is in the majority, he usually assigns majority opinions. The decision is usually made by the most senior justice in the majority.
Alito joined the court in 2006 and argued that the 1973 abortion rights ruling was an ill-conceived and deeply flawed decision that created a right that was nowhere in the Constitution.
The 5th Circuit Court of Appeals found that the Mississippi law ran afoul of Supreme Court precedent by trying to effectively ban abortions before viability.
Alito said that the survey of history ranged from the constitutionally irrelevant to the plainly incorrect.
The inescapable conclusion is that a right to abortion is not embedded in the Nation's history and traditions.
Alito quotes a wide range of critics. The late Justice Ruth Bader Ginsburg and Harvard Law Professor Laurence Tribe were both liberals who took issue with the reasoning in the abortion case.
The court's rightward turn in recent decades can be seen in Alito's skewering of abortion and the endorsement of at least four other justices. In 1973, five Republican appointees joined two Democratic appointees on the Supreme Court.
Almost immediately after the Supreme Court's decision, abortion access will be restricted in large swaths of the South and Midwest, with about half of the states set to impose broad abortion bans. The procedure could be allowed in any state.
The draft concludes that the citizens of each State can regulate abortion. The authority to make those decisions has been returned to the people and their elected representatives.
The draft contains the type of rhetorical flourishes that Alito is known for and that has caused Roberts some uneasiness in the past.
At times, Alito's draft opinion takes an almost mocking tone as it skewers the majority opinion written by Justice Harry Blackmun who died in 1999.
The Fourteenth Amendment was the provision that did the work, but its message seemed to be that the abortion right could be found somewhere in the Constitution.
Alito says that the distinction between the fetus not capable of living outside the womb and those that can makes no sense.
He describes doctors and nurses who end pregnancies as abortionists.
When Roberts voted with liberals in 2020 to block a Louisiana law imposing heavier regulations on abortion clinics, he used a neutral term.
The phrase "egregiously wrong" is used by Alito to describe the abortion procedure. The phrase was included in an opinion that was written by the Supreme Court in 2020.
The 1944 ruling that upheld the internment of Japanese Americans during World War II and the 1896 decision that blessed it were both wrongly decided by the Supreme Court.
The high court has never formally overturned the decision of Roberts that upheld the travel ban policy.
The court overturned the law of the land after the Brown v. Board of Education ruling.
On the day it was decided, it was outrageously wrong, according to Alito.
Alito's draft opinion includes a list of about two pages of decisions in which the justices overruled prior precedents.
The implication that allowing states to outlaw abortion is the same as ending legal racial segregation has been disputed. The comparison shows that the justices should disregard their usual hesitation about reversing precedent and completely abandon it because they believe that it is flawed.
Alito's draft opinion ventures even further into this racially sensitive territory by noting that some early proponents of abortion rights had views in favor of eugenics.
Alito writes that some supporters have been motivated by a desire to suppress the size of the African American population. A large percentage of aborted babies are black.
Alito doesn't cast aspersions on anyone by raising the point.
Alito addresses concern about the impact the decision could have on public discourse. Even if we knew what would happen, we wouldn't have the authority to make a decision.
The court would pay a terrible price for overruling the decision in the case, warned Justices O'Connor, Kennedy and Souter in the main opinion.
The three justices wrote that it had not been unworkable.
Roberts has been involved in a number of cases, including one challenging theAffordable Care Act, which made him seem out of sync with the other conservative justices.
Roberts seemed to be searching for a way to uphold Mississippi's 15-week ban without completely abandoning the framework.
It doesn't seem to me that virtue has anything to do with choice. If it is an issue about choice, why is 15 weeks not enough time?
Alito's draft opinion doesn't cater to Roberts' views, but it does address the interests of other justices. Since the 1970s, social attitudes toward out-of-wedlock pregnancies have changed, and increased demand for adoption makes abortion less necessary.
The issues that were raised at the December arguments are related to those points. She suggested laws allowing people to surrender newborn babies on a no-questions-asked basis doesn't mean they have to engage in child rearing.
Why don't the safe haven laws take care of that problem?
The idea that a right to abortion is implied in the Constitution is the focus of much of Alito's draft.
The justice attached to his draft a list of laws that criminalized abortion. Alito claims that the tradition of prohibiting abortion on pain of criminal punishment began in the earliest days of the common law.
There was no support in American law for a constitutional right to get an abortion until the 20th century. Zero. None. There was no state constitutional provision that recognized such a right.
Alito's draft argues that rights protected by the Constitution but not explicitly mentioned in it must be strong roots in U.S. history and tradition. Several of the court's recent decisions, including many of its rulings backing gay rights, seem to be at odds with that form of analysis.
“We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision....”
Liberal justices seem likely to take issue with Alito's assertion in the draft opinion that the right to contraception, to engage in private consensual sexual activity, and to marry someone of the same sex would not be jeopardized if the right to contraception was overturned.
Alito writes that the decision concerns the constitutional right to abortion and no other right.
Alito writes that women are not without electoral or political power.
One of the most secretive institutions in Washington is the Supreme Court.
Ginsburg was fond of saying that those who know don't talk and those who talk don't know.
A series of books by law clerks, law professors and investigative journalists have eroded that tight-lipped reputation. Some of the authors had access to the draft opinions obtained by POLITICO, but their books emerged after the cases in question were resolved.
The justices had their final arguments on Wednesday. The Mississippi abortion case is one of the cases that will be released over the next two months.
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