Outstanding Draft Majority Opinion in Dobbs

Published May 3, 2022

National Review Online

I see no reason to doubt that the draft opinion in Dobbs that Politico has published and reported on is indeed what Politico says it is: a proposed majority opinion that Justice Alito circulated to his colleagues, evidently (according to the stamp it bears) on February 10, 2022. As Politico notes:

The draft opinion runs 98 pages, including a 31-page appendix of historical state abortion laws. The document is replete with citations to previous court decisions, books and other authorities, and includes 118 footnotes. The appearances and timing of this draft are consistent with court practice.

Above all, the superb quality of the draft is compelling evidence that it is genuine. It is difficult to imagine who outside the Court would have the time, ability, and motive to craft and release such a masterful document.

I’m going to pass over here the deep scandal that someone leaked this draft to the press. I’m instead going to offer a reader’s guide to the draft majority opinion. Before I do, though, let me emphasize that we do not know whether the draft has changed in any respects, major or minor, and we also do not know whether it or a successor version has garnered a majority. On this second point, Politico reports that a “person familiar with the court’s deliberations”—evidently, the leaker of the draft—says that Justices Thomas, Gorsuch, Kavanaugh, and Barrett “voted with Alito in the conference held among the justices after hearing oral arguments in December, and that line-up remains unchanged as of this week.”

The draft posted by Politico does not allow copying and pasting, so rather than try to retype large passages from it, I’m going to refer you to it and summarize it concisely.

Introduction (pp. 1-6)

Overview of what Roe wrought, how Casey reconceived (and in part overruled) Roe, and how Casey failed in its grandiose goal of imposing a final settlement. The Mississippi law at issue.

“We hold that Roe and Casey must be overruled.” There is no explicit or implicit right to abortion in the Constitution. Abortion is not within the category of rights that have been held to be guaranteed in their substance by the Due Process Clause. Far from being deeply rooted in the nation’s history and implicit in the concept of ordered liberty, it was a crime at all stages of pregnancy in three-quarters of the states when the 14th Amendment was adopted. It is also “fundamentally different” from “the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage,” as it destroys what Roe and Casey called “fetal life” and what the Mississippi law describes as an “unborn human being.”

Stare decisis “does not compel unending adherence to Roe’s abuse of judicial authority.” Roe was “egregiously wrong from the start,” its reasoning was “exceptionally weak,” and it has had “damaging consequences.” “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives…. That is what the Constitution and the rule of law demand.

Part I (pp. 5-8)

The Mississippi law and procedural background

Part II (pp. 8-35)

The Constitution does not confer a right to obtain an abortion. Neither Roe nor Casey invoked the Equal Protection Clause, and our precedents squarely foreclose such a theory.

Our decisions have held that the Due Process Clause protects two categories of substantive rights, but neither applies here. (Pp. 11-14.) Abortion had long been a crime in every state, first at common law (in at least some stages of pregnancy) and then via a wave of statutory restrictions that expanded criminal liability for abortion. “By the time of the adoption of the Fourteenth Amendment, three-quarters of the States had made abortion a crime at any stage of pregnancy, and the remaining States would soon follow.” (Pp. 15-30.)

Abortion is not an integral part of a broader right to privacy. What sharply distinguishes abortion from the rights recognized in cases like Loving v. Virginia and Griswold v. Connecticut is that abortion destroys what Roe and Casey called “fetal life” and what the Mississippi law describes as an “unborn human being.” Those cases do not support a right to abortion. Our conclusion that the Constitution does not confer such a right “does not undermine them in any way.” (See also p. 62.) N.B.: Lots of folks who haven’t read the draft have been quick to contend otherwise. (Pp. 30-35.)

Part III (pp. 35-62)

Stare decisis does not counsel continued acceptance of Roe and Casey. Some of our most important decisions have overruled precedents, and the Court has overruled important constitutional decisions on lots of occasions. (See pp. 37-39, note 47, for a very long “partial list.”)

Five factors weigh strongly in favor of overruling Roe and Casey: the nature of their error (pp. 39-41), the quality of their reasoning (pp. 41-52), the workability of their rules (pp. 52-58), their disruptive effect of other areas of the law (pp. 58-59), and the absence of concrete reliance (pp. 59-62).

Part IV (pp. 62-65)

Casey was wrong to contend that the preservation of public approval of the Court weighed heavily in favor of retaining Roe. “[W]e cannot exceed the scope of our authority under the Constitution, and we cannot allow our decisions to be affected by extraneous influences such as concern about the public’s reaction to our work.” Casey made an unprecedented claim to judicial power, and it misjudged the practical limits of the Court’s influence.

Part V (pp. 65-67)

State regulations of abortion shall be subject to deferential rational-basis review. Mississippi’s law is constitutionally permissible under that standard.

Legitimate state interests include respect for and preservation of prenatal life at all stages of development, the protection of maternal health and safety, the elimination of particularly gruesome or barbaric medical procedures, the preservation of the integrity of the medical profession, the mitigation of fetal pain, and the prevention of discrimination on the basis of race, sex, or disability.

Ed Whelan holds the Antonin Scalia Chair in Constitutional Studies at the Ethics and Public Policy Center. A former law clerk to Justice Scalia, he is co-editor of The Essential Scalia: On the Constitution, the Courts, and the Rule of Law and of two other volumes of Scalia’s work.

Edward Whelan is a Distinguished Senior Fellow of the Ethics and Public Policy Center and holds EPPC’s Antonin Scalia Chair in Constitutional Studies. He is the longest-serving President in EPPC’s history, having held that position from March 2004 through January 2021.

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