Leaked First Draft of Opinion in Dobbs v. Jackson Overturns Roe

By Tanveer Kaur

Demonstrators outside the Supreme Court after the draft was leaked. (Kenny Holston / New York Times)

A leaked draft SCOTUS opinion originally obtained by Politico shows that the decision in Dobbs v. Jackson would overturn the precedent set in both Roe v. Wade and Planned Parenthood v. Casey.

In the draft, Justice Alito writes, “We hold that Roe and Casey must be overruled,” labeled as the “Opinion of the Court.” While also writing that “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

Justice Samuel Alito writes the following in the draft majority opinion: “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment,” he wrote. “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.”

If the opinion stands, for the first time in almost a century, the guaranteed right to abortion extended to all Americans, would be struck down, no longer providing federal protections for people seeking abortions and privacy in issues of reproductive health.

The suggested holding would leave the issue of reproductive rights up to states. With as many as 13 states already having trigger laws that would ban or restrict the procedure.

The fallout following the leak has been both critical of the draft, and the unnamed individual who has made the document public. This is the first time in modern U.S. history that a Supreme Court draft opinion was leaked.

This document is a draft, not the final vote or final majority opinion. The decision is most likely to be finalized in the next two months. Though the preliminary vote in Dobbs v. Jackson was 5-4, it is subject to change as the opinion and dissent are drafted. Chief Justice John Roberts who is currently in the minority, may choose to write his own opinion in which he advocates for the legality of the Mississippi abortion law, but not a complete reversal of Roe.

Next week, Senate Majority Leader Chuck Schumer intends to hold a vote on federal legislation to protect abortion access, however, due to the filibuster and the small democratic majority, it is unlikely the bill will pass. If Republicans win the Senate majority after the midterms, they plan to pass a federal ban on abortions.