WASHINGTON – The leaked draft opinion in the Supreme Court’s blockbuster abortion case showed Americans the argument Associate Justice Samuel Alito would make to overturn Roe v. Wade, the 1973 decision that established a constitutional right to end a pregnancy.
If the final product looks anything like the draft, it’ll upend reproductive rights as they have been understood in America for nearly 50 years.
Roe v. Wade, decided with a 7-2 majority, allowed people to obtain an abortion through the second trimester. A 1992 decision, Planned Parenthood v. Casey, moved that timeline, allowing people to exercise the right up to the point of viability, when a fetus can live outside the womb – roughly 24 weeks.
The high court was asked this term to consider the constitutionality of a Mississippi law that bans most abortions after 15 weeks of pregnancy, far earlier than permissible under Casey. It’s the first opportunity the court’s 6-3 conservative majority – including three justices nominated by President Donald Trump – have had to weigh in on the divisive question.
Alito is a stalwart conservative, and his draft, leaked to Politico and later verified by the court, is consistent with his views. The question is whether he has a five-vote majority to make the opinion the law of the land.
Here’s a look at some of the key sections of Alito’s draft.
The founding document
Perhaps no other section in Alito’s opinion captures the argument for overturning Roe more than this one.
The history of a right to abortion
On a court where conservative justices heavily emphasize the original meaning of the words of the Constitution, the framing of the history of any issue can be the deciding factor.
LGBTQ rights, contraception, gay marriage
Alito draws a distinction between abortion and other rights here because, he says, abortion involves the life or potential life of a fetus or embryo. The Supreme Court often tries to limit the impact of its decisions with such language, but that rarely prevents lawyers from trying to test those limits.
The problem of precedent
If conservatives reach first for an argument about the right to abortion not being explicitly mentioned in the Constitution, progressives tend to reach first for precedent. The Supreme Court generally tries to avoid overturning precedent because it leaves the impression that the court is political and that the law is malleable.
Just doing their job
Even before his opinion was leaked and protests erupted across the nation, Alito clearly understood the enormous political ramifications of a decision overturning Roe v. Wade and wanted to address them. The Supreme Court, in theory, is supposed to be the one branch of the federal government that is immune from political pressure.