Roe, on the Edge – The New York Times

The Supreme Court has decided to overturn Roe v. Wade and allow states to outlaw abortion, according to a written draft of the justices’ decision obtained by Politico.

Other publications have not confirmed the authenticity of the draft, and Supreme Court justices sometimes change their minds during the writing of opinions. But many legal observers are treating the draft as authentic and assuming that abortion policy in the U.S. is about to be transformed.

Among the reasons: The tone and style of the draft match those of earlier court decisions. The outcome also matches an outcome that seemed plausible based on the justices’ questions during arguments in December. After Politico published its story last night, the Supreme Court declined to comment.

If the court overturns Roe, many conservative states would likely outlaw nearly all abortions. One estimate suggests that the numbers abortions in the U.S. would decline by about 14 percent, The Times’s Claire Cain Miller and Margot Sanger-Katz explain.

Today’s newsletter walks through the case and its implications.

The vote

Every Republican appointee on the court other than Chief Justice John Roberts has voted to overturn Roe, Politico reported: Samuel Alito (who wrote the draft), Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas. The three Democratic appointees will evidently dissent. Roberts had not made up his mind at the time of the draft’s writing, but his vote is not crucial.

The biggest caveat is that justices sometimes change their minds, while they are reading and circulating draft opinions among themselves. In 2012, for example, Roberts changed his stance on whether to overturn Obamacare, as CNN’s Joan Biskupic later reported.

But such a switch seems unlikely now. Because of the leaked draft — a leak with no modern precedent at the court — any justice who switched sides would become notorious as the conservative who saved Roe.

This Times story reviews the competing theories about who leaked the draft. Some observers think it might have been a conservative justice or clerk, to lock in the majority. Others think it might have been a liberal justice or clerk, to undermine the court’s reputation as a high-minded body above the partisan fray; the leak makes the court look more like other Washington institutions.

The arguments

“We hold that Roe and Casey must be overruled,” Alito writes in the draft. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

The draft says that the Constitution is silent about abortion and that nothing in its text or structure supports a right to abortion. Roe, the draft continues, is so egregiously wrong that it does not deserve to be retained as a precedent; the proper approach is to return the question to the states.

The draft’s assertive and sometimes slashing tone reads very much like other major opinions from Alito, The Times’s Michael Shear and Adam Liptak note.

Politico apparently did not obtain a draft of the dissent. But during oral arguments, the liberal justices argued that such a radical change coming so soon after a change in the court’s membership would undermine its claims of nonpartisanship.

“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” Justice Sonia Sotomayor asked. “If people actually believe that it’s all political, how will we survive?”

How we got here

Roe has been law for almost 50 years, and Democrats — who almost universally support it — have won five of the past eight presidential elections. How, then, did an anti-Roe Supreme Court majority happen?

Circumstance plays a role. Donald Trump was able to appoint three justices, because of retirement or death — the most appointments in a single term in decades. But two specific decisions also loom over the potential repeal of Roe:

• In 2016, after Justice Antonin Scalia died, Mitch McConnell and other Senate Republicans refused to allow Barack Obama to appoint a replace during his final year in office. It was an aggressive power grab with little precedent, and it worked, after Trump won that year’s election.

• In 2013 and 2014, Justice Ruth Bader Ginsburg decided not to retire, even though Obama could have appointed her replacement and Democrats controlled the Senate. She was enjoying her job as a justice, and she ignored pleas from other progressives, who specifically warned that she could be threatening abortion access.

Barrett now occupies Ginsburg’s old seat, and Gorsuch occupies Scalia’s. Without both of those votes, Roe would probably not fall. During oral arguments, Roberts appeared to prefer a compromise that would have allowed states to ban abortion at 15 weeks; such a decision would have outlawed only a small percentage of abortions.

The politics

Public opinion on abortion is complicated. Most Americans support at least some access to abortion, and most support at least some restrictions. (A previous edition of The Morning goes through the details.)

If Roe falls, the U.S. would likely be split between blue states with greater access to abortion than most Americans favor and red states with substantially less access than most Americans favor.

Many Democrats have long believed that the politics of abortion help the party during elections — and that a court decision overturning Roe could help them retain Congress this year. That seems conceivable but hardly assured. It does seem like the country is about to find out.

Commentary

• Jill Filipovic, Substack: “I thought this decision would have a lighter touch, that the Court would functionally overturn Roe without formally overturning Roe. I underestimated their radicalism.”

• Dahlia Lithwick, Slate: “The results will be catastrophic for women … particularly for young women, poor women, and Black and brown women who will not have the time, resources, or ability to travel out of state.”

• David French, The Dispatch: “If the Alito opinion is real, it represents a restoration, not a rupture of our constitutional fabric … Roe was the rupture, and our nation has been dealing with the legal and political consequences ever since.”

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