Overturning Roe V.

Wade: The Supreme Court’s First Draft of the Leaked Abortion Opinion

The long-standing debate over the legality of abortion has divided Americans for

decades, even long after the 1973 landmark decision of the U.S. Supreme Court ruling in Roe v.

Wade which made a woman’s access to a safe and legal abortion a constitutional right. Many

conservative opponents and those who take a pro-life stance contend that abortion at any stage

upon fertilization of an egg, is morally wrong and equates it to murder. Conversely many liberal

proponents and those who are pro-choice assert that abortion is a women’s fundamental right

over her own body and should not be under government control. Federal protections for abortion

rights have been met with challenges for decades, but the pending U.S. Supreme Court case,

Dobbs v. Jackson Women’s Health Organization, which involves a Mississippi State law that

bans most abortion operations after the first 15 weeks of pregnancy, is the first to where the

Supreme Court will rule on the constitutionality of a pre-viability abortion ban and the right to

abortion since Roe (Center for Reproductive Rights).

Earlier this month, the first draft of the U.S. Supreme Court majority opinion considering

the arguments supported by Dobbs, and written by Justice Samuel Alito, was leaked to the

public. The leaked opinion suggested that the Supreme Court is poised to overturn Roe, a 50-

year precedent making abortion a constitutional right, and potentially handing over a women’s

freedom to choose to have an abortion, to be governed by the individual states. This paper is to

analyze the merits of the draft decision, and to do so, the following will be considered: 1) the

history of women’s reproductive justice, 2) the main points the leaked decision suggests justifies

a reversal of a Supreme Court precedent, and 3) the implications resulting from the potential

reversal of Roe.
 1. The Brief History of Reproductive Justice

Double standards have been deep rooted in American culture since we gained our

independence from Britain in 1776; and although we have made advancements in women’s

equality and rights, double standards are still alive and well in American culture through political

and societal attitudes. Males have been told to sow their wild oats while females are commanded

not to have a child out of wedlock and that they must not lose their virtue. What then, when a

woman and her virtue are taken advantage of by a male sowing his wild oats? Many times, the

answer is that the woman is left with the responsibility of raising a child, as is their position in

society. However, even with these double standards, women have been resourceful enough to

take hold of their decision to obtain reproductive care including abortion for centuries, from

other females such as midwives and nurses utilizing herbs and medications. Women could also

find ways to terminate their pregnancies in newspaper advertisements (pbs.org). These abortions

were allowed during the first four months of pregnancy prior to quickening, which is a term used

for fetal movement, by common law. It wasn’t until the mid-1800s when “a coalition of male

doctors – with the support of the Catholic Church and others who wanted to control women’s

bodies – led a movement to push state governments to outlaw abortion across the board”

(Plannedparenthoodaction.org). This led to the abortion ban in all states by 1910, except in cases

where the life of the mother or the fetus were at risk. As discussed in a May 6, 2022, “PBS

News Hour” interview between reporter John Yang and a law professor at the University of

California, Irvine, Michele Goodwin, one of the driving forces behind the outlaw of abortion was

to maintain the white race as these male white leaders feared a decline in birth rates among white

Protestants with some avoiding motherhood, and the growing foreign nonwhite immigration.
However, women still found ways to obtain an abortion in secret, but without proper

reproductive care, “one fifth of recorded maternal deaths were from unsafe illegal procedures

called back-alley abortions (pbs.org)”.

The political activist, Margaret Sanger who was concerned about the hardships that

childbirth cause with women in fragile health, unwanted pregnancies, and botched home and

back-alley abortions, opened the first birth control clinic in 1916. She also challenged the

Comstock law, a federal law that essentially restricted women’s reproductive rights making it

illegal to send, sell or give away “obscene, lewd or lascivious, immoral or indecent”

publications, which included birth control. By 1936, in the case United States v. One Package,

the Court’s decision made it legal for doctors to distribute birth control information and devices

throughout the country. By the 1960s the birth control pill came to market, but many states

prohibited the sale of contraceptives. It wasn’t until 1965 in the case Griswald v. Connecticut,

that the U.S. Supreme Court overturned the Comstock act’s birth control provisions, providing

the right to privacy as is interpreted under the 14th Amendment which prohibits the states from

depriving “any person of life, liberty, or property, without due process of the law”

(consitutioncenter.org), and included the right of married couples to control their fertility. It is

with the birth control pill and later other forms of birth control, that helped somewhat level the

field of sexuality by allowing women to control their own fertility.

Finally, in 1973 the U.S. Supreme Court heard the case, Roe, with the plaintiff “Roe”, an

unmarried Texas mother who asserted that the state violated her constitutional rights by

criminalizing abortion before viability (the time leading up to the point where a fetus can live

outside of the body, now considered around 24 weeks), and by a 7-2 vote, the Court agreed in
favor of Roe indicating that “along with the decisions relating to marriage, contraception,

education and family relationships, the decision about whether to continue or end a pregnancy is

fundamental to personal liberty” (reproductiverights.org). Once again, the Court’s interpretation

of the liberty and privacy clause of the 14th Amendment recognizes a woman’s right to bodily

autonomy to make decisions about their own body. With the ruling of Roe, governments cannot

restrict a woman’s right to an abortion before a fetus’s viability.

In 1992, after hearing the case, Planned Parenthood of Southern Pennsylvania v. Casey,

the U.S. Supreme Court refined the provision of abortion rights ruling that struck down

Pennsylvania’s law for a woman to have spousal consent ruling that it is is not constitutional

under the 14th Amendment under the privacy and liberty clause, as well as due process, and

further reaffirmed the right of a woman to seek an abortion before the viability of a fetus (24

weeks).

This brings us to present day as of this paper of the Court’s consideration of a

Mississippi’s appeal of the District Court and the 5th Circuit Court of Appeals ruling, striking

down as unconstitutional, Mississippi’s 2018 Gestation Age Act which bans all abortions after

15 weeks since the first day of a woman’s last menstrual period (except in medial need or

pregnancies resulting in rape or incest), citing that fetal pain might be felt as early as 15 weeks.

In the case of Dobbs is asking the Supreme Court to overturn the constitutional right to abortion

or to remove viability as the line for when abortion can be banned (kff.org). To further expound

on the case, Dobbs argues that “the Constitution does not provide a right to abortion and;

therefore, a state can freely ban abortions at any time during pregnancy, as long as the regulation

is “rationally related to legitimate government interests…and contends that the text of the
Constitution does not mention abortion at any time” (law.cornell.edu). He also asserts that “a

right to abortion cannot arise from the word “liberty”…because “liberty” only implicates

fundamental rights that are deeply rooted in the United States’ history and tradition”, and further

argues that “at the time of the 14th Amendment’s ratification, the public would have understood

that “liberty” did not cover abortion because many states already restricted abortion at that time”,

he goes on to say that Mississippi has legitimate state interests in protecting the life of the fetus,

health of women, and the integrity of medical professions” (law.cornell.edu). The Supreme

Court is expected to have their final decision on the case by late June or early July 2022.

It should be stated that, although Chief Justice Roberts proclaims that the leaked first

draft of the Supreme Court majority decision in Dobbs “does not represent a decision by the

Court of the final position of any member on the issues of this case” (kkf.org), with 5 out of 9

Justices appearing to vote to overturn Roe and Casey it seems that over 50 years of progress for

women’s reproductive rights will take an about-face.

2. The Leaked Decision

Taking into account the evolving history of women’s reproductive rights in the U.S. I will

consider the main points the leaked draft decision suggests justifies a reversal of what has

already been ruled a woman’s constitutional right.

The first main passage in the leaked Court’s decision of Dobbs, Justice Alito writes:

“At the time of Roe, 30 states still prohibited abortion at all stages. In the years prior to
that decision, about a third of the states had liberalized their laws, but Roe abruptly ended
that political process. It imposed the same highly restrictive regime on the entire nation,
and it effectively struck down the abortion laws of every single state.”
It should be recognized that the ruling of Roe did just the opposite, as it loosened the restrictions

that some states had on their abortion laws. If it wasn’t for the ruling of Roe, many states would

restrict abortions at all stages, and with this leaked draft, there are many states that have already

designed trigger laws that would take effect shortly after the Court strikes down Roe.

In the next substantive passage Justice Alito leans on Dobb’s main argument that Roe and

Casey must be overruled because the Constitution “makes no reference to abortion” and that “no

such right is implicitly protected by any constitutional provision including the one on which the

defenders of which Roe and Casey now chiefly rely – the Due Process Clause of the 14th

Amendment” (Dobbs vs. Jackson Women’s Health Organization). He further goes on to state

that “such right must be deeply rooted in the nation’s history and tradition and implicit in the

concept of ordered liberty.” He claims that “the right to abortion does not fall within this

category, and “until the latter part of the 20th century, such a right was entirely unknown in

American law”. Let’s start with the fact that the Constitution makes no reference to abortion.

Women in general were left out of the Constitution altogether, when signed in 1787 was written

by men who did not consider women as equal citizens. It was not until 1919 when Congress

ratified the 19th Amendment granting women the right to vote, after a nearly 100-year battle

during the women’s suffrage movement (history.com). So, we see here that abortions were

banned in the 19th century before women even had the right to vote (Rutgers.edu). Further, to the

point that no such right is implicitly protected by any Constitutional provision, would other cases

that are not implicitly be thrown out, such as the right for married couples to obtain

contraception, interracial or same sex marriages, or even civil-rights cases? As noted earlier in

this paper, before the late the 1800s, it was not illegal in most States for women to have an
abortion (pubmed.gov). It wasn’t until the mid-1800s during the movement to outlaw abortions

to encourage white fertility for fear of the expansion of the black and other nonwhite races in

America. Further, Justice Alito’s argument that a women’s right to an abortion is not deeply

rooted in the Nation’s history and traditions, but it is in the great amount of evidence he provides

in the opinion that it shows that it is in fact deeply rooted in the Nation’s history (Gerson, 2022).

The next main point made by Justice Alito is that Roe and Casey were “egregiously

wrong from the start” and that “its reasoning was exceptionally weak”. Here, I would only agree

with the reasoning of privacy being a weaker reasoning than the reason of equality. As the late

Justice Ginsburg asserted, Roe was focused “on the wrong argument – restricting access to

abortion violated a woman’s privacy”, instead, “she hoped that the protection of the right to

abortion was on the basis that restricting it impeded gender equality” (Gupta, 2021).

Another main point presented by Justice Alito’s argument is with regard to how abortion

should be regulated, stating that “ordered liberty does not prevent the people’s elected

representatives from deciding how abortion should be regulated”. As stated in a 2005 article in

the Wall Street Journal given the years of the abortion debate after Roe, “state legislatures are

poor arbiters of socially controversial issues for which there is no clear political consensus”. It

goes on to say that “nationwide uniformity is itself an important national interest”. If left to the

state legislatures, “different laws among different states would create unfair access to abortions

without economic means” and that courts are best suited to decide on complex political and

social controversial decisions (O’Hara, 2005).

This leads me to the final main passage included in Justice Alito’s leaked written opinion

that “women are not without political power”. By returning the decision of abortion back to the

legislative bodies, “it allows women on both sides of the abortion issue to seek to affect the
legislative process by influencing public opinion, lobbying and running for office”. First, it has

been acknowledged in this paper that as of 1919, woman have gained electoral power, but

throughout the history that Justice Alito focuses his analysis to overrule Roe, woman were

without it (Sorkin, 2022). Second, what is not being considered here is that women are under-

represented in state legislatures and in Congress, and Justice Alito is therefore suggesting that

women put their bodies back in control of a male dominated government. And lastly, why should

women have to fight for access to abortion during each election for state legislature when we

have already had the right to do so?

The opinion also addresses the overruling of precedents in earlier cases, specifically those

rooted in racial segregation such as Brown v. Board of Education of Topeka which overruled the

separate but equal principle of Plessy v. Ferguson, citing that “in appropriate circumstances, we

must be willing to reconsider and if necessary, overrule constitutional decisions and that it must

correct its own mistakes”. However, the basis of the comparison seems to be erroneous because

the decision to overturn “separate but equal” was to improve society and equalities, not take

equalities away such as when you force a woman to carry an embryo full term against her will.

Alito further states that “if American’s haven’t come to rely on the prior decision or facts have

changed, it may go”. But what facts have changed? The precise nature of fetal pain experience

remains unknown (Derbyshire & Bockmann, 2019).

3. Implications

It should be noted that the leaked opinion reiterates that the government has legitimate

interests in protecting the life and health of a woman and the potential life of the fetus. However,

if legal abortion as it stands now, during pre-viability is overturned and therefore criminalized,

what happens when pregnant women need medial attention for prior health conditions affecting
the pregnancy or complications with the pregnancy and are denied termination of pregnancy by

health providers for fear of facing criminal prosecution (nwlc.org), or when a woman is

impregnated by a man “sowing his wild oats” and the woman is left to physically and financially

care for an individual not planned for that they cannot feed or even house because of limited

means? Will the government address some of the double standards woman face by bringing

harsher penalties to absentee fathers? Will federal laws be passed to guarantee paid parental

leave? In fact, will the State of Mississippi, the state that has brought said case to the Supreme

Court support their push to force women to carry an embryo to full term and provide guaranteed

paid family leave, accommodations in the workplace and better medical care (nwlc.org)?

If Roe is overturned, there will be seismic implications such as half of the U.S. states

banning abortion resulting in negative long-term health effects in women with serious health

conditions, exacerbated economic hardships with women who are unable to raise a child alone

(Miller and Sanger-Katz). In a study conducted by Duke University Press, in the first year of

such a ban, there will be an estimated 7% increase in pregnancy-related deaths and would

increases to an estimated 21% (Stevenson, 1). How then is the overturning of Roe securing said

interests in the protection of a woman or fetus’s life? Further to that point, as history has shown,

many women who are turned away from having an abortion will not only travel to another state

that legalizes it or seek “back-alley” or at home abortions which is what promoted doctors in the

1960s to push for abortion in the first place (Breuninger). Lastly, given Justice Alito’s

interpretation of the constitution concerning the 14th Amendment opens the door to other cases

deemed “not being deeply rooted in the Nation’s history and tradition and implicit in concept of

ordered liberty”.
 If the Court overturns abortion rights, what will the government do to replace the reason

choice is made in the first place? It cannot be an all-or-nothing decision. If overturned, the right

to comprehensive sex education, affordable birth control, equal access to good health care and

other practical resources and support to meet the needs of women should replace abortion as it is

today, as constitutional rights protected by the 14th Amendment, and not left to the politically

polarizing state legislation. We cannot go backwards.

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